Tag: Access to Justice

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High Court refuses capped cost order for English corporate defendant in Malawi sexual exploitation case, emphasising access to justice. Noli sequitur forum non arguments dress up as cost application.

Update 25 February 2022 Lord Justice Coulson today refused permission to appeal:  [2022] EWCA Civ 233.

Cavanagh J (unusually assisted by Brown J, who has extensive experience in cost orders) last week in Thomas & Ors v PGI Group Ltd [2021] EWHC 2776 (QB) refused to grant a ‘Capped Cost Order’, ‘Cost Capping Order’ or CCO (these also exist for judicial review proceedings and in arbitration). This application for a CCO was reportedly the first made under CPR 3.19.

In the case, brought before Brexit date under Article 4 Brussels Ia, a group of Malawi claimants are suing tea company Lujeri’s English parent company PGI alleging complicity in exploitation and abuse, including sexual abuse.  Claimants allege the Defendant owed a duty of care to them on the basis that it promulgated relevant policies, standards and guidelines, that it exercised supervision and control over Lujeri, and/or that it held itself out as exercising such supervision and control. The Claimants further allege that the Defendant breached that duty of care and that they suffered loss and damage as a result.

English proceedings against Lujeri were dropped following claimants’ admission that they were unlikely to meet a jurisdiction challenge against same on the basis of Malawi being the natural forum for that claim [14]. The defendant does not resist A4 jurisdiction, acknowledges the UK is the natural forum for the claims against it, that there is no abuse of process (neither in my view have any place in A4 jurisdiction) and that the case is at least arguable.

Had the CCO been granted, it would have the effect of limiting the future costs recoverable by the Claimants, should they ultimately be successful, to £150,000 (or thereabouts). It would not impact the recoverable costs of the defendants if they are successful, although [25] they are unlikely to be able to recover any. As the judge notes [13] even if the core claim is successful, compensation will be far below parties’ legal costs in the case. The non-financial, ‘vindication’ [13] objectives are more important.

Despite defendants’ acknowledgment that a jurisdiction challenge is effectively impossible under A4 (A33-34 do not seem engaged), their arguments for a CCO [28 ff] are forum non via the backdoor:

Whilst not disputing that the Claimants are entitled to bring these proceedings against the Defendant in England, the Defendant submits that it is still open to the Claimants to bring proceedings in Malawi against Lujeri, their former, or, in some cases, their current, employer, and, indeed, against the Defendant. The Defendant submits that it would be more appropriate for the Claimants to bring their claims against Lujeri, in Malawi, especially as such claims would be advanced on the simple and straightforward basis of vicarious liability, rather than on the basis of a more complicated claim against the UK-domiciled parent company.

At 43 claimants make the obvious point that this is a ‘(lightly) disguised attempt to strike out these proceedings on the basis that they are an abuse of process, or that England is a forum non conveniens’.

At 72 the judge holds that claimants are right that it would not be appropriate, having regard to the CPR required principle of proportionality [‘the overriding objective [of the CCO, GAVC] of enabling the court to deal with cases justly and at proportionate cost’] to cap the costs at a figure that is less than the minimum costs that are required for them to litigate their claims effectively in the High Court. Costs in other words cannot be disproportionately incurred if they are below the amount that is required by the party to litigate its claims effectively, unless [74] parties’ costs are out of proportion to the potential benefits to the Claimant of the litigation’ – quod non in casu: [79]: ‘The sums that are likely to be recoverable, though small by English standards, are very significant for poor Malawian plantation workers, and they may indeed be life-changing. I accept the Claimants’ submission that in any event, the Claimants’ objectives in bringing these proceedings are not entirely, or even principally, about money.’

At 82-83 the resurrected forum non arguments feature again,  with the judge holding

In any event, in the present case, one of the parties, the Defendant, is domiciled in England. It is a matter of public importance in this country whether a company that is domiciled here is in breach of a duty of care to workers on plantations in Malawi, owned by a subsidiary company. CPR 44.3(5)(e) states that the extent to which a claim is in the public interest is a matter to be taken into account when considering proportionality.

That is an important consideration for future CCOs, outside the Brussels Ia context and indeed an argument that would feed into an A33-34 analysis, too.

At 91 ff the judge reinforces his findings on the basis of access to justice:

‘I think that it is highly significant, in this regard, that the imposition of a CCO would almost certainly have the effect of forcing the Claimants to abandon their claims…

this is not a case in which a wealthy Claimant is deliberately pursuing a low-value claim, at great expense, in order to harass the Defendant, or to cause as much unnecessary cost to the Defendant as possible. Rather, this is a case in which extremely poor Claimants are pursuing a relatively low-value claim for a number of legitimate reasons, only one of which is the prospect of damages.

This is an important finding, both under A4 Brussels Ia and beyond it, under residual English conflicts rules.

Geert.

European Private International Law, 3rd ed. 2021, Chapter 7.

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Suing the EU in The Netherlands. Stichting Human Rights for Eritreans v the European Union and its jurisdictional challenges.

Update 19 MAy 2020Hat off to Graf von Luxembourg for referring us to a recent discussion on the increasing use of Dutch Courts for public interest litigation.

Many thanks Russell Hopkins for alerting me to Stichting Human Rights for Eritreans v the European Union, demanding a halt to EU aid worth 80 million EUR being sent to Eritrea. The Foundation Human Rights for Eritreans argues the aid project financed by the EU aid relies on forced labour. Claimants have a portal with both the Dutch and English versions of the suit.

Of note to the blog is the jurisdictional section of the suit, p.32 ff. Claimants first of all put forward that the CJEU’s Plaumann criteria (which I discussed ia here in the context of environmental law) effectively are a denial of justice and that Article 6 ECHR requires the Dutch courts to grant such access in the CJEU’s stead. An interesting argument.

Note subsequently at 13.9 ff where Brussels Ia is discussed, the suggestion that given the large diaspora of Eritreans in The Netherlands, locus damni (actual or potential) lies there. This is in my view not an argument easily made under Article 7(2) Brussels Ia given CJEU authority.

Geert.

 

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CJEU finds Aarhus does not add value in Belgian VAT case.

As a practising lawyer registered to the Belgian Bar I had more than a passing interest in C‑543/14 Orde van Vlaamse Balies v Ministerraad. The case was held on 28 July. At issue is the reversal of the Belgian exemption of legal services from value-added tax (VAT). Of interest for this blog was the Bar Council’s argument that making legal services subject to VAT endangers access to court for individuals. Corporations recover said VAT from the tax their own sales incur. For them, making legal services subject to VAT has zero impact on their books.

The Bar Council sought support among others in the Aarhus Convention, particularly Article 9(4) and (5) on access to court:

‘3.       In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4.       In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5.       In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’

Perhaps taking inspiration from the Grand Chamber’s approach in Vereniging Milieudefensie, and consistent with the suggestion of Sharpston AG, the five judges Chamber dismissed direct effect for Articles 9(4) and (5) of Aarhus, mostly because of the Conventions deference in Article 9(3) to ‘national law’.

Given the increasing (but as noted recently qualified; see also here) cloud the CJEU’s Grand Chamber had been given Aarhus, this finding by a five judge chamber that Aarhus Articles 9(4) and (5) do not have direct effect is a little awkward. It also puts the Grand Chamber itself in a challenging position. There are quite a number of Aarhus-related cases pending. Will this chamber’s view on 9(4) and (5) be followed by the assembled top dogs? And if it is not, can the Grand Chamber overrule or distinguish without embarrassment?

Geert.

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Court of Justice dismisses Vereniging Milieudefensie in air quality appeal. Aarhus not always the jawbreaker in judicial review.

In Joined Cases C‑401/12 P to C‑403/12 P, the issues at stake are the scope of judicial review (in the specific context of information requests), the EU’s long and difficult relationship with locus standi in environmental matters (again though within the perhaps more narrow context of access to information), the correct implementation of the Aarhus Convention, and the direct effect of said Convention. The judgment which the ECJ issued yesterday, underlines the need to review the direct effect of international law on a case-by-case and indeed article-by-article basis. While it is clear that the European Court of Justice overall has great sympathy for the binding impact of the Aarhus Convention (see i.a. my postings on the ECJ’s judgments in cases related to the cost of environmental litigation), in this case the relevant environmental organisations failed to convince the ECJ that Article 9 of the Convention has direct effect.

Article 9 Aarhus provides a review procedure in the event requests for information have been refused. (Readers may wish to consult Article 9 themselves to judge direct effect or lack of it themselves).

Regulation 1367/2006 implements the Aarhus Convention is-a-vis the EU Institutions. The case concerns Article 10 of that regulation, entitled ‘Request for internal review of administrative acts’, which provides in paragraph 1 thereof: ‘Any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act.’

Article 2(1)(g) of that Regulation defines ‘administrative act’ as meaning: ‘any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects’.

The Netherlands, in accordance with Article 22 of the ambient air quality Directive, Directive 2008/50, had notified the Commission that it had postponed the deadline for attaining the annual limit values for nitrogen dioxide in nine zones and that it was availing itself of a specific exemption from the obligation to apply the daily and annual limit values for particulate matter. The Commission accepted that postponement. Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht submitted a request to the Commission for internal review of that decision pursuant to aforementioned Article 10(1). The EC refused internal review.  The Commission considered the request inadmissible as the concerned acts in their view were not “administrative acts” as defined in Article 2(1)(g), not being, the EC argued , of ‘individual scope’ but rather of general application.

The General Court sided with applicants: because Article 10(1) of Regulation 1367/2006 limits the concept of “acts” that can be challenged by NGOs to “administrative acts” defined in Article 2(1)(g) of the Regulation as “measures of individual scope”, it argued that the Regulation is not compatible with Article 9(3) Aarhus. That judgment was appealed by many. The AG in current case also sided with the applicants. (Albeit following a different reasoning than the General court).

The ECJ itself disagreed. The provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise. (Ex multi, the ECJ quoted its judgment in the Emissions Trading Scheme case, C-366/10).

Article 9(3) Aarhus, the Court held, does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore does not meet those conditions: since only members of the public who ‘meet the criteria, if any, laid down in … national law’ are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure at the national level. The Aarhus Contracting Parties enjoy have a broad margin of discretion when defining the rules for the implementation of the ‘administrative or judicial procedures’ (at 59 in fine).

We were quite getting used to Aarhus being employed as a jawbreaker by the ECJ and national courts alike. I am not saying those days are over. However Vereniging Milieudefensie does show both that we cannot assume the Convention’s empowering effect for all of its provisions, and secondly, that at the level of the Convention itself, beefing up one or two articles would certainly assist its implementation. (That in itself, of course, may become more difficult the more frequent the ECJ and national courts both in the EU and elsewhere, employ Aarhus against unwilling State authorities).

Geert.

PS note that in Joined Cases C‑404/12 P and C‑405/12 P, Stichting Natuur en Milieu, the ECJ mirrors this judgment with respect to an internal review of a Regulation setting maximum residue levels for pesticides.

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Is justice what you can afford to be done? ECJ turns to Aarhus Convention to apply ‘not prohibitively expensive’ in the EIA Directive.

In Edwards, the European Court of Justice (‘ECJ’) turned to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, to interpret the provision ‘not prohibitively expensive’ in the European Directive on Environmental Impact Assessment (‘EIA’). These provide that members of the public (with sufficient interest) must have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive. Any such procedure must be, in the words of the Directive, ‘fair, equitable, timely and not prohibitively expensive.’

The House of Lords had affirmed a Court of Appeal’s decision to dismiss the appeal of Ms Pallikaropoulos and, on 18 July 2008, ordered her to pay the respondents’ (including the Environment Agency) costs of the appeal, the amount of which, in the event of disagreement between the parties, was to be fixed by the Clerk of the Parliaments. The respondents submitted two bills for recoverable costs in the amounts of GBP 55 810 and GBP 32 290. The jurisdiction of the House of Lords was transferred to the newly-established Supreme Court and the detailed assessment of the costs was carried out by two costs officers appointed by the President of the Supreme Court. In that context, Ms Pallikaropoulos relied on Directives 85/337 and 96/61 to challenge the costs order that had been made against her.

The Supreme Court asked the ECJ inter alia

– whether the question whether the cost of the litigation is or is not “prohibitively expensive” within the meaning of Article 9(4) of the Aarhus Convention as implemented by [those] directives be decided on an objective basis (by reference, for example, to the ability of an “ordinary” member of the public to meet the potential liability for costs), or should it be decided on a subjective basis (by reference to the means of the particular claimant) or upon some combination of these two bases?, and whether

– in considering whether proceedings are, or are not, “prohibitively expensive”, is it relevant that the claimant has not in fact been deterred from bringing or continuing with the proceedings?

In 2003, the EIA Directive had been amended and specific reference had been made to the Aaurhus Convention with which, the Directive said, the EIA Directive had to be ‘properly aligned’.

The ECJ held that the cost of proceedings must neither exceed the financial resources of the person concerned nor appear, in any event, to be objectively unreasonable.  As regards the analysis of the financial situation of the person concerned, the assessment which must be carried out by the national court cannot be based exclusively on the estimated financial resources of an ‘average’ applicant, since such information may have little connection with the situation of the person concerned. The national court may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure and the potentially frivolous nature of the claim at its various stages. That the claimant has not been deterred, in practice, from asserting his or her claim is not in itself sufficient to establish that the proceedings are not, as far as that claimant is concerned, prohibitively expensive.

Plenty of criteria therefore for the Supreme Court to consider, altogether a (slight but important) dent in Member States’ national civil procedure rules.

Geert.

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Aarhus Convention trumps narrow EU provisions on access to justice – Court of Justice in Stichting Natuur en Milieu

International environmental law is often said to be toothless. The Aarhus Convention, too, is typically equated with fluffiness and the type of language (inter alia because of the high degree of deference to national law) typical of soft-law. Yet in Case T-338/08, the General Court at the Court of Justice of the EU (effectively a first instance court in cases such as these), annulled relevant decisions of the European Commission (‘EC’), finding them to be based on an improper implementation of the Aarhus Convention.

Stichting Natuur en Milieu and Pesticide Action Network Europe, had applied for internal EC review of the relevant Regulation which specifies maximum residue levels of pesticides for relevant food and feed products (the maximum levels being too lenient according to these NGOs). The argument upon which the applicants were successful (victory was not universal), concerned the narrow interpretation which EU law gives in relevant part to ‘acts’ which under Article 9 of the Aarhus Convention, must be subject to review by interested parties, to establish whether they infringe the environmental laws of the Aarhus Party concerned. EU law effectively restricts access to justice to those cases where interested parties take issue with measures of an individual scope (‘administrative acts’), as opposed to those of general application (‘acts’ full stop).

The General Court first of all established that the EC in the case at issue did not act in a legislative capacity (which would have made Article 9 Aarhus inoperable) but rather used its executive authority. Furthermore, notwithstanding the absence of definition of ‘act’ in the Aarhus Convention, the Court held that it cannot have limited itself to measures of individual scope only.

The EC may appeal with the Court of Justice; should it not do so, or should the Court confirm the General Court’s view, the EC first of all will have to reconsider the relevant Regulations, setting the maximum levels concerned. Moreover, it must surely take the initiative to amend the underlying Aarhus Regulation, so as to expand the notion of ‘act’ which is subject to internal review.

The judgment is a cautious step, for the access to justice provisions of the EU are generally said to infringe the Aarhus Convention on more than this issue alone.

Geert.

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