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COSTS OF THIRD PARTY INTERVENERS IN REGULATORY PROCEEDINGS

The issue of the costs of third party interveners in judicial review proceedings was dealt with recently in the case of R (Peel Investments) v Health and Safety Executive [2013] EWHC 1012 (Admin), [2013] Env. L.R. D6.  Peel involved a novel application of established principles on costs that will be of interest to all those advising commercial bodies in regulated industries in respect of intervening in judicial review proceedings.

Introduction

Peel brought a challenge to two decisions of the HSE: (i) not to provide it with a copy of the full un-redacted safety report concerning the re-commissioning of the previously mothballed Manchester Fuel Terminal; and (ii) not to consult it following provision of the safety report. A ‘rolled–up’ judicial review hearing was held before Underhill J to determine whether the HSE’s decisions were in compliance with the COMAH Regulations (SI 1999/743). Peel’s application for interim relief had been refused some weeks earlier by Males J. 

Permission to proceed with the claim for judicial review was refused. It followed that the HSE was awarded its costs. Valero, the owner of the Fuel Terminal, had participated at both stages as an interested party. It sought its costs of both stages.

Existing Legal Principle

The leading authority on the issue of third party costs in judicial review is Bolton MDC v Secretary of State for the Environment [1995] 1 W.L.R. 1176. In Bolton, the House of Lords held that a third party would normally be entitled to its costs where there was likely to be a separate issue on which it was entitled to be heard or if it has an interest which requires separate representation. 

Peel contended that there was no such issues and no such interest.  Indeed, although oral submissions were made by counsel for Valero at the ‘rolled–up’ hearing, it largely adopted the submissions of the HSE on the substance of the interpretation of the COMAH Regulations. In the event, (permission having been refused), questions of relief and discretion never arose.

Novel application of the Bolton principles

However, in applying Bolton, it was found to be highly pertinent that the HSE directly regulated Valero’s operation of the Fuel Terminal.  Valero successfully argued that it would be wholly inappropriate to ask a regulator to run arguments as to relief and discretion on behalf of an entity it regulates. Valero also highlighted that, as in Bolton, the case was of considerable commercial and financial importance to it as an interested third party.

Underhill J awarded Valero its costs, observing that it would have been imprudent for it to count on its regulator to have made points on relief and discretion issues for it. It was held that Valero did need to attend to argue, if necessary, such issues because they required separate evidence and separate submissions to those which the HSE would have been running. Valero was the only party which could adduce such evidence and make such submissions. Importantly, Underhill J did not limit Valero’s costs to these issues – it was not material that on the substance of the interpretation of the COMAH Regulations, HSE and Valero were at one.

The practical impact of Peel 

This judgment will be of great interest to commercial entities considering intervening when a decision of their regulator which affects them is subject to a judicial review challenge. Such entities can now take comfort from the weight Underhill J attached to the nature of the relationship between Regulator and Regulated Entity in order to find that Regulated Entities can have a separate interest, and so may be awarded their costs of intervening, when decisions of their Regulator are challenged. So, where such a relationship exists, the usual position taken by courts – that points of relief and discretion can be properly argued by the decision-maker – may be more readily displaced.

Interpreting EU directives using drafts of a proposed superseding directive

Peel is also noteworthy insofar as Underhill J, at [22], interpreted the EU directive (which the COMAH regulations implemented) by reference to the travaux préparatories and the draft of a subsequent superseding EU directive. This followed the practice adopted at EU level in Case C-293/98 Entidad De Gestion v Hosteleria Asturiana [2000] EMLR 523. Thus, Underhill J’s judgment recognises in domestic law a valuable tool to be applied when interpreting EU legislation and domestic implementing measures.

Katherine Apps was instructed to represent the Health and Safety Executive led by Martin Chamberlain QC of Brick Court Chambers. She has played no part in the writing of this article.

Katherine Apps and Marc Delehanty are members of Littleton Chambers’ Disciplinary and Regulatory Group (DRG). For more information about our DRG Group or to instruct one of our barristers please contact the clerks on clerks@littletonchambers.co.uk or 02077978600. 

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