HM Treasury & Anor v Global Feedback Ltd [2025] EWCA Civ 624

Adam Riley (instructed by Government Legal Department) for the Appellants

LORD JUSTICE HOLGATE :

Introduction

• Article 9(3) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention”), which was ratified by the United Kingdom on 23 February 2005, requires each Party to ensure that 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.” Article 9(4) requires inter alia those procedures, and also procedures under Art.9(1) and (2), to “provide adequate and effective remedies” and not to be “prohibitively expensive”. The central issue in this appeal is what is the meaning and width of the phrase “which contravene provisions of its national law relating to the environment” in Art.9(3).

• Part IX of CPR 46 gives partial effect to Art.9(4) by imposing costs limits on “Aarhus Convention claims”. That expression means “a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Art. 9(1), 9(2) or 9(3)” of the Aarhus Convention (CPR 46.24(2)(a)).

• The costs capping provisions in ss.88 and 89 the Criminal Justice and Courts Act 2015 do not apply to Aarhus Convention claims falling within Part IX of CPR 46^[1]. Conversely, claims falling within the costs protection provision in Art.9(4) for procedures under Art.9(1) to 9(3) but outside part IX of CPR 46, may be the subject of a costs protection order under the 2015 Act.

• The issue has arisen in a claim for judicial review brought by Global Feedback Limited (“GFL”) against HM Treasury and the Secretary of State for Business and Trade (“the appellants”) in respect of their decision on 23 February 2023 to make the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 (SI 2023 No. 195) (“the 2023 Regulations”). The 2023 Regulations give effect to tariff preferences on Australian imports under a Free Trade Agreement (“FTA”) between the UK and Australia which was signed on 17 December 2021 and came into force on 31 May 2023.

• GFL is a charity concerned with environmental protection. It seeks to regenerate nature by transforming food production services. GFL claims that the 2023 Regulations will harm the environment by adversely impacting on climate change. It says that the FTA would lead to a substantial increase in greenhouse gas (“GHG”) emissions from the production of cattle meat, because (i) beef production methods in Australia produce significantly more GHG emissions per weight of beef than those in the UK and (ii) the lower prices of Australian beef compared to UK beef are likely to lead to a net increase in production of Australian beef for consumption in the UK. According to GFL, “carbon leakage” occurs when production moves from one country to another resulting in higher net GHG emissions, for example where the production process in the new country is more GHG intensive.

• In its Statement of Facts and Grounds GFL alleges that the appellants declined to assess the nature and extent of this carbon leakage for reasons which were illogical and/or irrational; the decision was tainted by predetermination; and flawed by a misreading of Art.4(1)(f) of the United Nations Framework Convention on Climate Change (“UNFCCC”).

• At a hearing on 26 June 2024 Lang J granted permission for the claim for judicial review to be brought. Her judgment is at [2024] EWHC 1810 (Admin).

• A second hearing took place before Lang J on 28 June 2024 at which the appellants contended that the claim was not an Aarhus Convention claim falling within Part IX of CPR 46. In an ex tempore judgment Lang J decided that it was ([2024] EWHC 1943 (Admin)). She ordered that the costs limits in CPR 46 should apply. She adjourned the appellants’ application to vary those limits to a hearing on 23 July 2024. By an order dated 24 July 2024 Lang J refused that application, with the result that the standard costs limits in CPR 46.26 apply. The judge also ordered the appellants to pay GFL’s costs of resisting their applications for a ruling that the claim was not an Aarhus Convention claim and to vary the standard costs limits.

• With the leave of Arnold LJ, the appellants appeal against para.2 of Lang J’s order dated 28 June 2024 determining that the claim is an Aarhus Convention claim, but not the order dated 24 July 2024. The claim for judicial review is stayed pending the determination of this appeal.

• On 24 February 2025 Arnold LJ gave leave to WWF UK (“WWF”) to intervene by way of written submissions. The intervener is a charity with longstanding experience in matters concerning international trade and environmental protection. These include the environmental impact of supply chains on the sustainability of food production.

Continue reading this Judgment here.