AC-2024-LON-002558 - [2025] EWHC 2278 (Admin)

Finally I note that there is some remaining controversy between the parties regarding the availability of Aarhus costs protection. In light of the outcome of this claim the arguments about Aarhus may well have become academic, nevertheless I offer some brief comments on the issue before making a ruling.

Mr Kolinsky KC’s order granting permission to proceed with judicial review included a ruling that “The claim proceeds as an Aarhus Convention claim”. This is consistent with the application made by the Claimant in the claim form. No figures for the amount of the costs caps were stated in the order.

Ms Nevin noted that no statement of financial resources has ever been filed by the Claimant, contrary to CPR 46.25(1)(b). In her skeleton argument she therefore submitted that Aarhus costs protection cannot extend to the claim. Mr Beglan resisted this contention. I heard brief oral argument on the point at the outset of the hearing. The parties agreed that it was appropriate for me to rule on the dispute in my reserved judgment.

At the heart of Ms Nevin’s submission was the fact that the requirement to file a statement of financial resources is mandatory if Aarhus costs protection is to be extended. She submitted that the failure does not negate the ability to seek protection once and for all. She did submit (partly in reliance on a judgment of mine – Wesson v Cambridgeshire County Council [2023] EWHC 2801 (Admin)) that a claimant can remedy the error by providing a compliant schedule at a later date, but she noted that there is still no such schedule in this case. Ms Nevin also submitted that there is uncertainty about whether the Claimant is acting on his own account or as the representative of a group. In that regard she drew my attention to the Claimant’s witness statement which includes the comment that the claim “is brought for the benefit of and on behalf of the local residents of Bucks Alley and the nearby village of Little Berkhamsted”. Uncertainty about the status of the Claimant affects the starting point for the applicable costs cap.

Responding for the Claimant, Mr Beglan submitted firstly that there is no application on notice to vary the order of Mr Kolinsky KC and that, procedurally, the court should not at this late stage entertain what is in effect an application to vary. Mr Beglan relied on CPR 3.10 and submitted that the failure to observe the prior procedural step of providing a statement of financial means should not automatically result in the order for Aarhus costs protection being set aside.