Aarhus Costs Cap Stays Where No Compliant Variation Application Is Made | A Ticked Box Without Reasons Does Not Meet CPR 46.27(5)

In Peter David Hall v Secretary of State for the Environment Food and Rural Affairs [2026] EWHC 2623 (Admin), the Administrative Court held that neither the defendant nor the interested party had made a compliant application under CPR 46.27(5), so the Aarhus costs cap applied at the standard limits. Ticking the acknowledgment of service box, and later setting out reasons in skeleton arguments, did not give the court power to vary the limits.

Background

The Claimant, a breeder of Hereford (Original Population) cattle, challenged the Defendant’s decision to determine native breed agri-environment payments in accordance with a new native breeds support list, and a refusal to exercise enforcement functions in respect of the breed society, HCS [3], [5], [6]. In section 7 of the claim form he declared that the claim was an Aarhus Convention claim [7].

He did not file the schedule of financial resources required by CPR 46.25(1)(b) with the claim form, but sought an extension of time and served the schedule on 5 November 2025 [8], [9]. The Defendant and HCS each filed an Acknowledgement of Service and Summary Grounds of Defence on 26 November 2025. On 17 March 2026 Lang J directed that the listed issues be determined at an oral hearing [13].

Costs Issues Before the Court

Lang J’s order listed, among other matters, whether the claim was an Aarhus Convention claim and, if so, whether the standard costs limit should be varied [2]. The court held that it was an Aarhus Convention claim [119]. It then had to decide whether the Defendant or HCS had made an application to vary or remove the limits in accordance with CPR 46.27(5), and so whether the court had power to vary them [131].

The Parties’ Positions

The Defendant initially accepted in pre-action correspondence that the claim was an Aarhus claim for present purposes, but later sought to challenge its application [106]. HCS maintained in correspondence and in its Summary Grounds of Defence that the Aarhus Convention did not apply [107]. On variation, HCS relied solely on the Claimant’s delay in filing the Statement of Means [129], while the Defendant made only very general observations about the Claimant’s means [128].

The Court’s Decision

The judge first set out the framework. Where a claimant complies with CPR 46.25(1)(b), the costs limit is automatically in place: £5,000 for a claimant claiming only as an individual, £10,000 in other cases, and £35,000 where a defendant is ordered to pay costs [122]. The court may vary or remove the limits only on an application made in accordance with CPR 46.27(5) to (7), and only if satisfied on the prohibitive expense criteria [123].

The late schedule did not displace the Aarhus costs cap. The consent order arguably should have resolved matters, but in any event the judge proceeded on the basis that an extension of time for the statement of financial means had been or would be granted, because an in-time application was made in the claim form and there was no prejudice to the other parties [126].

The rule in CPR 46.27(5)(b) is specific. An application to vary, if made by the defendant, must be made in the acknowledgment of service and must provide the defendant’s reasons why, if the variation were made, the costs of the proceedings would not be prohibitively expensive for the claimant [127].

The Defendant made no application in its Acknowledgment of Service and offered only very general observations about the Claimant’s means in its Summary Grounds of Defence. No subsequent application or amended grounds followed. The judge was not satisfied that the Defendant had made any application in accordance with CPR 46.27(5) [128].

The listing of the variation issue did not assist the Defendant. Notwithstanding the very general wording of Lang J’s directions order, the judge said: “I do not consider that the wording of that order serves to remove the need for compliance with the CPR” [128]. On this reasoning, a direction listing the issue for hearing did not stand in for the application the rule requires.

HCS went further, ticking the box in section 5.2 of its Acknowledgment of Service to indicate that it was applying to vary or remove the standard costs limit. In the judge’s words, HCS “did not include any suggested variation, or provide any reasons why, if a variation was made, the costs of the proceedings would not be prohibitively expensive for the Claimant” in its Summary Grounds of Defence. It relied solely on the Claimant’s delay in filing the Statement of Means [129].

Later steps did not cure the omission. After the Aarhus issues had been listed, the Claimant’s solicitors wrote on 14 April 2026 asking the other parties to confirm their positions on the costs limits, but HCS filed no application or amended response setting out reasons in line with CPR 46.27(5). The first detailed reasons addressing the relevant criteria appeared in the skeleton arguments [130].

The judge concluded that neither the Defendant nor HCS had made a compliant application under CPR 46.27(5) “so as to give the court power to make such an order” [131]. The standard Aarhus costs limits in CPR 46.26(2)(a) and 46.26(3) therefore apply to all the parties, and any further application to vary them will have to comply with CPR 46.27(6) to (7) [132].

The Aarhus costs cap then shaped the costs order. The Claimant lost on permission and the extension of time and was liable for the costs of preparing the Acknowledgments of Service and Summary Grounds [137]. Those costs significantly exceeded his £5,000 cap, which was apportioned equally between the Defendant and HCS [138]. After set-off of his costs of the Aarhus issue, he was ordered to pay £2,500 to each [142], [143].

Practical Implications

For defendants, the decision, which is a first instance ruling, places the work at the acknowledgment of service stage. An application to vary the Aarhus costs cap should be made in the acknowledgment of service itself, stating the variation sought and the reasons why the costs would not be prohibitively expensive for the claimant, by reference to CPR 46.27(5)(b) [127].

Interested parties should note that the court assessed HCS’s position against the same CPR 46.27(5) requirement [131]. Ticking the box in section 5.2, or relying only on the claimant’s delay in serving the statement of means, did not suffice [129]. Nor should a party hold its reasons back for the skeleton argument or assume that a directions order listing the issue preserves its position [128], [130].

A party that has missed the point should consider whether any further application can meet CPR 46.27(6) to (7) [132]. For claimants, the decision supports checking each acknowledgment of service for a compliant application and, as the Claimant’s solicitors did, seeking the other parties’ positions in writing [130]. Where the schedule cannot be filed with the claim form, applying for an extension in the claim form itself helped here [126].

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