PRIVATE LAW ENVIRONMENTAL CLAIMS:THE COSTS AND FUNDING CYCLONE

UKELA 12th July 2011

Presented byGordon Wignall

PRIVATE NUISANCE PROCEEDINGS -A VICTORY FOR THE PRIVATE INDIVIDUAL

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Pride of Derby and Derbyshire Angling Association LD. and Another v. British Celanese LD. & Ors [1953] Ch. 149

An injunction granted restraining the (3) Defendants from discharging effluent into the River Derwent so as to alter the quality (including the temperature) of the water of the river to the injury of the plaintiffs or so as to interfere with the plaintiffs' rights of fishery

Halsey v. Esso Petroleum Co. Ltd. [1961] 1 W.L.R. 683

Damages and an injunction to restrain the emission of noise and smells from an oil refinery; damages in respect of the emission of oily smuts

THE TORT

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Threshold – the robust standards of ordinary English folk

Causation – is the installation the source?

State of affairs – an element of permanence rather than intermittence

Nature and character of the area?Best practicable means – not a defence

Planning permission very unlikely to be an automatic defence Defence! - statutory authority – Marcic (Can be defeated by negligence) Liability may extend to acts of independent contractorsInjunction the usual remedy

CAUTION!Measured Duty of Care (Anthony v. Coal Authority)Reasonable user & Barr v. Biffa Waste (18th April 2011)

GROUP LITIGATIONCPR PART 19

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1. Common Issues of fact or law2. A register of claimants3. Decisions on common issues are binding on the claimants4. Cost sharing (costs apportioned per quarter)5. Novel case management6. Cut-off date to benefit the Defendant

CAUTION!Practice Direction – Group Litigation6.1A “A claim must be issued before it can be entered on a Group Litigation”

GROUP LITIGATIONCPR PART 19

Lord Woolf Access to Justice Final Report (1996)1. Common issues are not identical issues. Treat different cases different ways: maximum flexibility; individual proceedings in parallel2. “The earlier the court exercises control in a multi-party action the better chance of managing the case to a satisfactory resolution” 3. Ten or more claimants: five may be sufficient4. “No need for the Court to take a view of the merits [at the certification stage]”5. “Imagination and creativity”

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GROUP LITIGATION IN PRACTICE1. Are the emissions about which the Claimants claim caused by the operation and management of the plant?2. What is the distance beyond which complaints of nuisance are not justified?

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GROUP LITIGATIONCPR PART 19

Lord Woolf Access to Justice Final Report (1996)1. Common issues are not identical issues. Treat different cases different ways: maximum flexibility; individual proceedings in parallel2. “The earlier the court exercises control in a multi-party action the better chance of managing the case to a satisfactory resolution” 3. Ten or more claimants: five may be sufficient4. “No need for the Court to take a view of the merits [at the certification stage]”5. “Imagination and creativity”

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EXAMPLES

Landfill sites

Composting sites

Motor Racing

Foundries

Low Frequency Noise

Mining and quarrying

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FUNDING VEHICLES I – CFAs

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No claimant gets a complete indemnity for feesWaive unrecovered costsPremiums staged100% at trialCovers pre-action work, s.51 applications and

enforcementCan Sibthorpe v Southwark LBC [2011] 2 All ER 240 be

utilised?Discounted arrangementsLimit for period of claim?Are available for Defendants

CAUTION!Solicitors may put themselves at risk (Myatt No2)

FUNDING VEHICLES II – ATE

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No rule that impecunious claimants cannot sueTerms are important – is there protection for interim

adverse costs? What is the scope? Does it cover security for costs as agaibst D? (See Guerrero v. Monterrico Metals plc [2009] EHC 2475, 16th October 2009.)

Does the policy have sufficient cover?Will top-up be made available?Will D agree to limit its costs to avoid a premium?There is no jurisdiction to permit an order for disclosure of

an ATE premium, although this is a fact-sensitive issue. (See Ocensa Pipeline Group Litigation, Senior Master, 6th May 2010.)

DO COSTS GET OUT OF CONTROL?

Defendants do not always behave rationally

A GLO is a procedural device for the resolution of complaints

Claimants' solicitors do not put claimants on the register lightly

Do not treat a GLO like ordinary litigation

“Threshold first”: both D and C can fight their individual cases as to nuisance if they insist.

Why indulge in satellite or procedural litigation?

Cost capping now rare. What happened to budgeting?

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THE FUTUREAarhus? Morgan v. Hinton Organics [2009] Env LR 30

Implementation of Jackson/Young

Reforming Civil Litigation Funding and Costs in England and Wales – Government Response March 2011

No QOCSNo recovery of ATE Increase of general damages by 10%

Legal Aid, Sentencing and Punishment of Offenders Bill: s.41 (success fees), s.43 (recovery of insurance premiums by way of costs) (Second Reading 29th June 2011)

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PRIVATE LAW ENVIRONMENTAL CLAIMS:THE COSTS AND FUNDING CYCLONE

UKELA 12th July 2011

Presented byGordon Wignall