2 Day Judicial Review Court Hearing

Day 1 Court Building

Unfortunately – we were not allowed to take photos or videos inside the Royal Courts of Justice at all – so I have made a few notes of the 2 days for your interest.

Day 1 outside court building

We met the reporter and cameraman from BBC Look East outside the court building and had a brief chat.  The cameraman was familiar with the story having been with us several days before the BACI Car Rally in November last year.  Some shots of us going into the Court were taken to be used in a broadcast later in the day.

Day 1 walking into court building

After going through security we found that the building itself was just as impressive inside as it was outside with a vaulted ceiling, stone carvings and the numerous barristers and lawyers going about their business.

Court Number 18 was a regular sized courtroom located upstairs in the Royal Courts of Justice.

There was time for a very quick discussion with the Barrister before we went inside the courtroom.

The set up inside the courtroom was slightly cramped – mainly because in this instance there were two sets of opponents.  Represented were: the Defendant (the Environment Agency), the Interested Party (Covanta) and the Claimant (BACI) – each with our own legal teams.

The court was arranged with – what I presume – was the original 5 benches facing the Judge and Court Clerks area.  The press also had a mini-bench off to one side at a right angle – and this is where Simon the reporter from BBC Look East sat for much of the first day – joined at times by Andy the Cameraman.

Covanta had a team of 4 people on the front bench (this was reduced to 2 on the 2nd day) in front of their Barrister who was a QC.  The QC was located on his own on the 2nd Bench from the front.

The Environment Agency’s Barrister was located on the 3rd Bench behind Covanta’s QC with a team of I think 4 behind him on the 4th Bench (this appeared to be reduced to 2 on the 2nd day).

Our Barrister was located on the opposite end from the EA’s Barrister on the 3rd Bench and myself, our Solicitor and our Expert Witness were directly behind him on the 4th Bench.

Some of the BACI committee and visitors were behind us on the same side of 5th Bench.  It was unclear who the remainder on the far side of the 5th Bench were – who were located behind the EA’s legal team.

We were grateful to be joined for much of the day by Karen (one of our BACI facebook members) and a member of another Action Group who are fighting their own Incinerator.

The Judge came into the courtroom at 10:30am – Mrs Justice Lang had been the Judge who had granted us permission on the papers to go ahead to the full hearing.

Our Barrister was the first to speak and lay out the grounds of the claim against the Environment Agency.

In order to bring a claim under Judicial Review – the grounds must concern the process and procedures used by the Environment Agency during the permitting process.

Our claim requested that the Court quash the Permit given to Covanta in January.

The background to this claim is that contained within Covanta’s application documentation that the EA relied on in order to grant the permit – was a scientific error.

This error of science was questioned by our Expert Witness during the public consultation period – but this was ignored by the EA and the error remained unchallenged.

In brief terms – Covanta’s document stated that the heavy metals that are inherent in the Incinerator Bottom Ash would not be expected to dissolve in contact with surface water.  The document further concluded that Covanta’s proposed Silt/Oil Interceptors would – therefore – be capable of capturing these metals before discharge into Stewartby Lake and the wider Great Ouse system.

This section within Covanta’s document that contained the error was – however – still specifically incorporated into the permit itself.

Being first speak – our Barrister had probably the hardest job as the grounds contained a lot of technical information that the Judge asked many questions about.  Our Barrister was also the first to take the Judge to various sections in the Trial Bundles – which she naturally became more familiar with when the other Barristers subsequently referred to them.

It must also be pointed out that the submissions by all parties are based on all the various documents that we – and they – had submitted at various points throughout the Judicial Review process.  These included summary grounds, detailed grounds, skeleton argument and witness statements (including expert witness statements).

We broke for lunch at 1pm and had a de-brief with the Barrister and Solicitor.  Some quick questions and discussion could and did take place during the Court sessions themselves as we were behind the Barrister – but it is very hard to discuss fully in that situation.  Any points that were to be raised had to already have been located somewhere in evidence.  So – during the sessions especially – there was a lot of looking for a reference to an item in the Trial Bundles.

We also touched base with BBC Look East who had set themselves up in the middle section of the Strand to do the live lunchtime broadcast.

Resuming at 2pm our Barrister continued for about another half an hour to wrap up any outstanding points we had discussed at lunch – and then the EA’s Barrister put forward his submission.

Having gained a lot of knowledge from our Barrister – the Judge asked more specific questions of the EA’s Barrister.  The EA’s Barrister appeared to me to be more rehearsed in his delivery.

The EA’s main stance came across to me that as the regulator they should be able to issue permits where they are satisfied – and that the Permit document should be read as a whole not individual sections.  They also made several comments regarding the Courts involvement.

To her credit – the Judge appeared to want to know as much as possible about the situation – and appeared to be very astute in her questioning.

At the end of the first Court day at 4:30pm the EA’s Barrister had not fully completed his submission – and this was held over until the following day.

The BBC Look East team was waiting outside the Court building and continued with some additional filming.  We then joined the legal team in the cafe across the road for a day one de-brief.

Day 1 outside building end of day

Day 1 end of day debrief

Me and Colin went for a walk around to stretch and then a quick bite to eat before heading back home.

Day 1 going home

Day 2 was less stressful in the sense that we knew where we were going and what to expect – and also did not have the TV team onsite.

Day 2 outside court building

Day 2 Court Session began with the EA’s Barrister concluding his submission – and then the process moved to Covanta’s QC.

I had expectations of the QC just because he was a QC.  The Judge – however – did not appear to me to treat him any differently than the other Barristers and at times I had difficulty hearing him as his delivery was not as clear to me.

Covanta’s submission was much the same as the EA’s had been – with one notable exception that had started to be explored by Covanta in their skeleton argument documentation.

Covanta tried to make a point of the fact that although our Expert Witness did flag up the error in science during the Public Consultation – he did not provide an alternative solution at that time.  This came across to me as effectively blaming the Expert Witness – and by extension BACI for this whole situation.

Covanta’s submission took us to around 12:30ish and then our Barrister was able to come back on a few points that had been raised by the EA and Covanta since he last spoke.

Before the end of session which would be 1pm – the Judge made the statement that she would be deferring judgement so that she could take more time due to the technical nature of the claim.

At a small de-brief with the legal team – we understand that the judgement could take a few weeks or could be longer.

We definitely took this as a good sign.  Our claim had not just been thrown out once due process had taken place – but it will be receiving full consideration.

Nicola Ryan-Raine

Day 2 going home on train passing Covanta site

Please Click Here to view the Full Gallery of Photos from the 2 Days

Additional Information

Below is a video with additional information regarding the basis of the Judicial Review Claim and some footage shot on the way back from Court on the 2nd Day (11th October) showing the current progress in the pit.