The Supreme Court has decided to refer questions to the Court of Justice of the European Union (CJEU) in an appeal concerning the costs that could be awarded against Volkmar Klohn in an environmental case.
The appeal concerns the application of European law, including rules connected to the Aarhus Convention, to the amount of costs that may be imposed on Mr Klohn. The Supreme Court did not decide that costs issue in this judgment. It said the parties could submit written observations on the proposed questions before the reference is finalised.
The judgment was delivered by Mr Justice Clarke on 24 February 2017. The appeal was considered on written submissions after Mr Klohn asked the court to decide it on the papers. The Board did not object in principle, provided it would not be prejudiced by the absence of an oral hearing. The court sat at the scheduled time but did not hear oral argument.
The court said an oral hearing was unnecessary before referring questions to the CJEU. It also observed that written-only consideration should remain exceptional in substantive appeals, and that oral hearings can help clarify disputed issues and may save judicial time overall.
In discussing Mr Klohn’s submissions, the court addressed his argument that litigants representing themselves are disadvantaged by oral hearings. Mr Justice Clarke said that view was misconceived, and pointed to examples of litigants in person succeeding or securing a reference to the CJEU. The judgment also noted a separate domestic-law argument Mr Klohn had made about whether amended costs provisions applied to pending cases. The Board’s solicitors argued that the Supreme Court had addressed that issue in an earlier case, Sweetman v Shell E & P Ireland. The court described the Board’s point as arguable; it did not determine the European-law costs questions in this judgment.
The Supreme Court allowed the parties 14 days to make written observations on the draft reference. It emphasised that the decision to refer had been made, while the final formulation of the questions remained for the court, which would consider the parties’ observations before finalising the text.