Environmental Law News Update

In this latest Environmental Law News Update, Mark Watson QC, Charles Morgan and Mark Davies consider developments in a case imposing the largest ever environmental fine on an individual, a new report from the National Audit Office on the challenges of water supply and demand and a new policy paper from the Department for Transport on decarbonising transport.

Day v Womble Bond Dickinson

The circumstances surrounding the largest ever environmental fine imposed on an individual has recently been the subject further consideration by the Court of Appeal Civil Division in Day v Womble Bond Dickinson [2020] EWCA Civ 447.

Philip Day, the businessman behind Edinburgh Woollen Mill and various other High Street chains, was fined £450,000 and ordered to pay an additional £457,317 by way of prosecution costs after pleading guilty to offences contrary to the Wildlife and Countryside Act 1981 at Carlisle Crown Court in 2013. The offences concerned the unlawful of felling trees and other substantial damage to an SSSI woodland which formed part of Mr Day’s estate in Cumbria.

Mr Day unsuccessfully appealed to the Court of Appeal Criminal Division: R v (Natural England) v Day [2014] EWCA Crim 2683. Indeed, the then Lord Chief Justice observed [at §46] that a “fine significantly greater than that imposed by the [Crown Court] judge would have been amply justified for [Mr Day’s] grossly negligent conduct in pursuit of commercial gain, particularly when so seriously aggravated by his conduct in obstructing justice.”

It appears that despite these firm conclusions, and having exhausted the appellate route in the criminal jurisdiction, Mr Day had not lost his appetite for further litigation arising from the case, and he turned his attention to the solicitors who had represented him during the criminal proceedings.

In 2018 he issued civil claims claiming breach of contract and/or negligence against them. The claim, at that stage advanced on the basis that it was “substantially more likely than not that he would have been acquitted if properly defended”, was promptly struck out on grounds of illegality in April 2019 by Her Honour Judge Deborah Taylor sitting as a Deputy High Court Judge. Mr Day appealed to the Court of Appeal Civil Division.

Save in one small respect, and in what might be termed a rather robust judgment, the Court of Appeal strongly endorsed the findings of the Judge Taylor that the essence of the claim failed on grounds of illegality, because [at §28] “it is a rule of law and a manifestation of public policy that a civil court will not award damages to compensate a claimant for a disadvantage which the criminal courts have imposed on him or her by way of punishment for a criminal act for which he or she was responsible.” Any such claim for damages on the grounds that that an advocate or professional representative has been negligent will be struck down so long as criminal conviction stands [at §40].

In this respect, the judgment is primarily of relevance in the civil and professional negligence field; and specifically the whimsical, novel characterisation of the test for an application to strike out [at §78] advanced on Mr Day’s behalf “that an intelligent twelve year old child would understand” why the claim should be stayed will no doubt raise its head in the future.

But in addition, given that one of the grounds of claim arose from alleged failure to advance an abuse of process argument in light of an alleged statement by an individual associated with the prosecution agency, the judgment is also a reminder of the extremely high bar a defendant needs to surmount when seeking to demonstrate of abuse of process on the ground of an alleged assurances not to prosecute [at §46-§49].

Nevertheless, counsel for Mr Day did succeed in persuading the Court of Appeal (”with reluctance” at §74-§75) that one discrete aspect of his alleged loss, specifically the increased quantum in his own legal costs as a result what is said to have been negligent advice to elect Crown Court trial was matter which was not, in principle, barred by the rule against illegality.

So, despite some fairly blunt conclusion as to many aspects of his case, Mr Day’s claim moves forward in respect of one specific head of alleged loss i.e. his own costs. It remains to be seen whether the claim will feature in any future reported judgment. However, given that the prosecution costs were in excess of £457,000 in respect of proceedings in the Crown Court which culminated in two days of legal argument and a three day Newton hearing, it is reasonable to suspect that there will be many in the profession who might be very interested in the quantum of defence costs that were incurred in the case and the reasons underpinning those costs.

“Water, water every where”

“Nor any drop to drink” was the plight of the Ancient Mariner in 1834. A recent report by the National Audit Office “Water Supply and Demand Management” considers the risk of the same state of affairs arising in the UK two centuries later. Climate change threatens a bizarre combination of torrential rainfall and flooding and severe drought. Daily water consumption per person is increasing (consumers of Sutton and East Surrey, you are the thirstiest) and so too is the population. Meanwhile, 20% of water for public supply, all carefully treated to the highest standards of quality, is lost to leakage. Defra has as one of its objectives “to ensure clean and plentiful water”. The NAO has scrutinised the performance of Defra to date and makes suggestions as to future improvement. It has some interesting observations on what it perceives as the drawbacks of the current dynamic created by the quinquennial price-setting mechanism (the latest round recently completed) in which the major players are Defra, Ofwat, the Environment Agency and the water industry – essentially the creation of an artificial fixed periodicity of review affecting a spectrum of differing issues, some of which actually need longer term joined-up planning and others of which need much more frequent revisiting. It is also critical of Defra’s failure to use its influence to make water efficiency a priority across government.

The Report’s recommendations (though not in such colloquial terms) are that Defra should “up its game” and “flex its muscles”. It’s a densely-written 50 pages but a very good treatise on the way in which the water industry currently works, and the respects in which it doesn’t.

The Ancient Mariner, surrounded as he was (and the UK is) by undrinkable sea water, would have been pleased to learn that the Report canvasses the increased use of desalination as a source of supply. At present, Thames Gateway Water Treatment Works at Beckton is the only operational desalination plant in the UK. London is classed by the Environment Agency as “seriously water stressed” and the south and south-east of England are expected, if things do not improve, to run out of water within the next 20 years, so it is there that the greatest initiative and imagination is needed. Effluent reuse is nevertheless perceived as a non-starter for drinking water, which may relieve those who have recalled that Beckton also houses Europe’s 7th largest sewage treatment works. “Water, water, every where, Nor any drop to drink” indeed, but final effluent is capable of being used for other purposes such as cooling and irrigation, thereby freeing up other sources for potable supply.

Department for Transport publishes its policy paper, ‘Decarbonising Transport: Setting the Challenge’

On 26 March the Department for Transport published its policy paper ‘Decarbonising Transport: Setting the Challenge’ ahead of the final publication of its ‘Transport Decarbonisation Plan’, due for publication in Autumn of this year.

The paper is set out in six chapters with the first three presenting types of transport and their current greenhouse gas emissions. Chapter four presents the forecast for greenhouse gas emissions through to carbon budget 5 (2028-2032) based on the current, firm and funded commitments that have been made. Chapter 5 breaks down the remaining challenge of meeting net zero by 2050 in the transport sector and splits it out into six strategic priorities whilst chapter 6 details the Government’s approach to engagement.

The six strategic priorities are:

• Accelerating modal shift to public and active transport
• Decarbonising how we get our goods
• UK as a hub for green transport technology and innovation
• Decarbonisation of road vehicles
• Place-based solutions
• Reducing carbon in a global economy

Taking the first strategic priority as an example, it is clear that the paper marks a seismic shift in approach from Government. The aims under the first strategic priority are to:

• Help make public transport and active travel he natural first choice for daily activities
• Support fewer car trips through a coherent, convenient and cost-effective public network whilst exploring how we might use cars differently in the future
• Encourage cycling and walking for short journeys
• Explore how to best support the behaviour change required

Coming from a part of the country where the public transport system currently consists of a bus service (one bus, every other Tuesday, providing Jupiter is in the ascendency) and a community mini-bus (for use on special occasions, providing it isn’t being used by the local Scouts Group), I would be delighted to see the level of investment required to make public transport the natural first choice. The £5 billion fund announced by the Prime Minister on 11 February for investment in local buses, cycling and walking infrastructure is a good starting point.

So, please do engage with the Department for Transport on its plan for Decarbonising Transport, it’s one of the more promising policy papers produced in quite some time. You can register your interest in workshops as part of the process by emailing TDP@dft.gov.uk or receive updates by following the Department on Twitter.

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