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On appeal from: [2006] EWCA Civ 877

An appeal against a decision of two costs officers appointed to assess costs incurred in proceedings before the Appellate Committee of the House of Lords. It considered the approach that should be taken by courts when awarding costs, and costs officers when assessing costs, in cases raising issues about the environment where Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, Council Directive 96/61/EC concerning integrated pollution prevention and control, and the Aarhus Convention provide that, because of the nature of such legal proceedings, they should not be “prohibitively expensive”.

The Supreme Court unanimously set aside the costs officers’ ruling that they had jurisdiction to implement the Directives, and referred the case to the CJEU for a preliminary ruling to ascertain what those Directives required. A decision about what the Directives required was a matter for the Court and not the costs officers. The question whether the review procedure is prohibitively expensive can, and should, be addressed by the Court itself. Preferably this should be at the outset of proceedings. In an appeal, a party seeking a protective costs order on the basis that otherwise the proceedings will be prohibitively expensive should make that application when permission to appeal is being sought, or as soon as possible thereafter.

The Court considered whether, when the House of Lords rejected the appellant’s application and also when it found her liable for the respondents’ costs, it fulfilled its obligation to take measures necessary to achieve the objects of the Directives. Developments since these decisions show that there are unresolved issues with the requirement that proceedings must not be “prohibitively expensive”. In particular, it is unclear whether the test is a subjective one, which looks to the means of the particular claimant, or an objective one, which looks to the ability of an ordinary member of the public to meet the potential liability for costs. It is not clear what the appropriate test under the Directives is.

For judgment, please download: [2010] UKSC 57

For the Court’s press summary, please download: Press Summary

For a non-PDF version of the judgment, please visit: BAILII