Neutral Citation Number:  EWCA Civ 424
IN THE SUPREME COURT OF JUDICATURE C/2000/3682
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Newman)
Royal Courts of Justice
Wednesday, 21st March 2001
B e f o r e :
LORD JUSTICE HENRY
ON THE APPLICATION OF BEEVERS AND OTHERS
THE ENVIRONMENT AGENCY
Computer Aided Transcript of the Palantype Notes of
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Mr Stephen Tromans (instructed by Messrs Richard Buxton, Cambridge) appeared on behalf of the Applicants.
The Respondents did not appear and were not represented.
J U D G M E N T
(As Approved by the Court)
LORD JUSTICE HENRY: The question that was litigated in the proceedings with which I am concerned dealt with whether the Barmby tidal barrage on the river Derwent in Yorkshire fell within the Conservation (Natural Habitats) Regulations 1994 and whether the proposal that was being examined was a plan or project under those Regulations. The question arises in the context of a claim by local people against the Environment Agency.
2. The judge recognised that that was a decision of some importance, both locally and more generally. He heard one and a half days of evidence on this matter. At the end of that, he said that to answer that question it was necessary to start with the Environment Agency and their operation of the barrage, and it was essential that the correct legal framework for these matters was established. The first one and a half days of argument he summarised in this way:
... it seems to me that the applicants need to re-assess where they stand in relation to the Environment Agency; they need to assess the legal basis which may or may not exist for the Secretary of State being made a respondent; and the matter must be prepared in accordance with the lines of argument which have now been foreshadowed."
He therefore adjourned the matter.
4. When, at the end of the day, he came to give his judgment, he made it clear, as we shall see, that the application had been preceded by an exchange of correspondence. He was, before he made his order as to costs, referred to the negotiations between the parties as to whether the Agency accepted that the operation of the barrage was a "plan or project" within the Habitats Regulations and consequently gave rise to statutory obligations on the Agency to carry out particular assessments and review contemplated by the directives. The Agency's position was that the operation of the barrage was not a plan or project, and that remained their stance throughout.
5. It became clear while the parties were before the court over those first one and a half days, and, as the judge commented, it is apparent from the correspondence which took place before returning to court, that it was well known that the Agency were carrying out such a review, but they attached importance to the fact that it was not a statutory review. The applicants' concern was in relation to the water level in the Derwent and the effect of that level on the adjoining hay meadows.
6. The adjournment, as the judge said, was for a number of reasons. As a result of that adjournment, certain matters were agreed between the parties, but the question of how the costs were to be borne remained outstanding to be resolved by the judge. Accordingly, on that single issue they came back to the judge. The judge analysed the stances of both parties. He made the point, first, that the Agency had been entirely consistent throughout on the basis that this was not a plan or project triggering the statute, but, while they held firm to that, they accepted general obligations concerning conservation relating to the area. The judge knew this from the correspondence. The Agency's stance when it came to costs was that nothing had been achieved by the application; what they had done, they had done voluntarily. The applicants, on the other side, said that what they had got by agreement they could have achieved by judicial review if agreement had not been reached.
7. On that basis, the judge was asked to deal with it in a "broad brush" way. He made the point that everyone involved in this litigation had the same environmental interests, yet between them £50,000 worth of costs had been spent in argument about how those interests would best be achieved.
8. He said that it would have been essential for the applicants to show that Regulation 50 applied to the Barmby barrage. Any such finding would be of importance for the Agency and would give rise to applications elsewhere. The Environment Agency held to that point of principle. The judge measured that against the fact that the applicants in the settlement offers had obtained undertakings, first, that the Agency should review whether the 1972 Order would have a significant effect on the hay meadows and, secondly, if they discovered that the integrity of those meadows was affected, they would remedy the situation if necessary by amendment of the 1972 Order. That Miss Haynes, for the Agency, said was on offer any way.
9. The judge will have had his own views on that, because he had all this correspondence read to him before he made his order. He concluded in this way:
What then can it be said that the applicants have achieved? The applicants have the advantage of undertakings. They have the undertaking to review, as soon as reasonably practicable ... "
He dealt with the undertakings which I have already summarised, and said this:
I do not accept that these proceedings have served no practicable purpose. I can see the force in Mr Tromans' submission, that in having undertakings on the matters which I have summarised, the applicants were entitled to reasonably conclude that they had achieved something, and something of some significance. Albeit it is true the Agency have not accepted the legal liability under Regulation 50, they have assumed, by their undertaking to the court, a liability by virtue of the undertaking, and the undertakings do extend to particular attention being paid to the specific concerns of the applicants. It being the position that the proceedings have achieved some practicable purpose, what is there to lead to a conclusion other than the one Mr Tromans submits is correct, namely that they should have their costs?"
He then dealt with that in this way:
In my judgment, Ms Haynes is right to point out that in a situation where the court is not in a position to determine the merits of the legal argument or the merits of the underlying case, weight should be paid to the fact that the Agency have remained consistent and made no concession throughout in respect of their legal arguments. She submits, without quite the same degree of force as in my judgment is appropriate, that they have undertaken to do that which they were already doing. I have made my observations in relation to that.
Ms Haynes submits that, the position of the Agency not having changed and the shift in position of the applicants, being based, it would appear, upon Article 6(2), as being the strongest arguable ground for giving rise to a basis for challenge, the case has shifted at the instance or at least should be taken to have shifted at the instance of the applicants, in the light of a concession by her in her latest skeleton argument, and that thus the applicants' approach has not been matched by the same degree of consistency."
He went on to give his judgment in these words:
... the extremes of the position which have been taken up (I do not mean by that unreasonably), namely that the applicants should pay all the respondent's costs or that the respondent should pay all of the applicants' costs, even on a broad brush approach cannot reflect the range of issues to which this application gave rise.
So far as each is concerned, as I have indicated they have all had a common objective and I assume have all acted in good faith in order to achieve the common objective. They have done their best before these proceedings to debate the matter together, but without success. [That is another reference to the correspondence about settlement] The institution of these proceedings has achieved a focusing of attention for the better fulfilment of their agreed objective. It seems to me that, so far as each of these parties are concerned, it would be wrong to convict either side in costs. On a `broad brush principle', in my judgment, this piece of litigation should be terminated upon the basis that each party pays its own costs."
That is attacked before me on the basis that there is no specific, as opposed to general, reference to the correspondence and the offers that were made in that open correspondence. But, as a close reading of the judgment makes clear, it is obvious that the judge had this well in mind. After all, he had just been told it.
14. There is another point (which is accepted, I think, as being a makeweight point) as to the insurance premium which the applicants paid against the risk of losing and having to pay costs, which is badly affected by the fact that no order for costs was made other than that each party should pay its own. Counsel tells me that he referred the judge to that, although the judge did not mention it specifically. In any event, it would not be right to give too much weight to the effect of the small print of an insurance policy taken out by one party on a "broad brush" application for costs.
15. I have to ask myself the question whether it is arguable that this court would upset the judge's order as to costs. It is a matter for the judge in his own discretion. It is only if it comes within the Wednesbury formula that it could be upset. In all the circumstances, it does not seem to me arguable that it would be. This, in my judgment, is not a proper case for permission to be granted. The application is therefore dismissed.
Order: application for permission to appeal dismissed.