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Babergh Alliance of Parish & Town Councils

Comments on Topic: Legal Precedents

Submitted by Paul
27-Feb-2017
Costs

One of the main factors to be considered when undertaking a Judicial Review are costs. If the claimant looses their case, they are liable to pay the costs of the other party. 

This is a major risk for Parish Councils.

In the case of East Bergholt v/s Babergh District Council, we were able to claim for an action under Aarhus cost cap. This limits the costs against the Council to £10,000 and the costs they can claim to £35,000. (see http://www.nabarro.com/insight/briefings/2015/march/local-authorities-can-rely-on-the-aarhus-costs-cap-protection-(but-for-a-limited-time-only)/)

The advantage of this approach is that a request to limit costs under the Aarhus capcan be requested when the case is lodged. Should the claimant not accept this, they have to disprove it is reasonable at their own cost


Submitted by Paul
27-Feb-2017
Solicitor

The solicitor who represented East Bergholt was:

David Bowman. He has said he will answer any detailed questions and would be available to provide advice,

“If you have any questions or require any information concerning East Bergholt Parish Council’s successful Judicial Review of Babergh District Council’s Planning Permission for development off Hadleigh Road please contact the Parish Council’s Solicitor David Bowman of Royds Withy King in the first instance (David.Bowman@Roydswithyking.com – Telephone number 0207 583 2222). The Parish Council is not able to answer your enquiries relating to this case at the present time. Individuals or parish councils who find themselves in have similar circumstances are encouraged to take solicitors’ advice.”

David Bowman
Senior Associate
Dispute Resolution
D: +44 (0)20 7842 1407 T: 020 7583 2222 ext: 2709 M: 07557 740567

Submitted by Anonymous
28-Feb-2017
See http://www.bbc.co.uk/news/uk-39109865
Seems probable that the Aarhus protocol will be abolished and with it the protection of a limit to legal costs for those proposing a JR. Does anyone have further information? When will the new government proposal be enacted?
Submitted by Anonymous
28-Feb-2017
Further comment on BBC report re Aarhus protocol from David Bowman as follows - looks like the impact is the on the initial debate prior to the start of JR hearing: 


The change referred to in Clive Coleman’s report is the revision to Part 45 of the Civil Procedure Rules which takes effect from today for all judicial review claims issued. 

 

The change to the rule inserts the following:-

 

Varying the limit on costs recoverable from a party in an Aarhus Convention claim

45.44.—(1)The court may vary the amounts in rule 45.43 or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim.

(2) The court may vary such an amount or remove such a limit only if satisfied that—

(a)to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and

(b)in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant.

(3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either— 

(a)exceed the financial resources of the claimant; or

(b)are objectively unreasonable having regard to—

(i)the situation of the parties;

(ii)whether the claimant has a reasonable prospect of success;

(iii)the importance of what is at stake for the claimant;

(iv)the importance of what is at stake for the environment;

(v)the complexity of the relevant law and procedure; and

(vi)whether the claim is frivolous.

(4) When the court considers the financial resources of the claimant for the purposes of this rule, it must have regard to any financial support which any person has provided or is likely to provide to the claimant. 

(Rule 39.2(3)(c) makes provision for a hearing (or any part of it) to be in private if it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality.) 

It is not clear what effect this new varying provision will have in practice. It does seem to work in both directions. It may be that there is little change in all but the most extreme cases (i.e. where BP is judicially reviewing a government decision! Or where the local charity shop is doing the same in relation to a planning permission.) One action we might see more of in future is a routine spat at the start of proceedings over whether a claim is an Aarhus claim and if so what the cost cap should be set to (based on arguments about affordability). 

Submitted by Anonymous
28-Feb-2017
NB: It's just the first point of 45.44. that has been inserted - that is the point 1. 

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