Fatal air pollution: A subject for group actions in the UK?

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It has long been recognised that air pollution, in the form of particulates, and sulphur and nitrogen oxides, has an extremely detrimental effect on health – particularly in heavily populated urban areas with high traffic densities.

In February 2016, for example, a joint report by two Royal Medical Colleges in the UK found outdoor air pollution was contributing to around 40,000 early deaths a year in the UK.

Establishing liability for this just got one step closer with the coroner’s findings on the death of a young girl in London caused, in part, by air pollution.

EU takes action

This problem has been recognised at European level, and over the years the UK government has signed up to a number of EU initiatives on ambient air quality, culminating in the Air Quality Directive in 2008.

This required Member States to secure improvements in ambient levels of various pollutants – including nitrogen dioxide – in selected areas, to ensure the population is not exposed to long-term health effects from those pollutants. Successive governments were, however, slow to implement the Directive.

This may have been due partly to cost and the fact that governments may have had other economic priorities, and partly to the political risk of the unpopularity of the measures that might be required to restrict traffic flows in the relevant areas.

In respect of nitrogen oxides, the problem was exacerbated by UK government policy favouring the use of diesel power (for example, by the use of fiscal incentives) to reduce overall carbon emissions to combat climate change. Environmental problems rarely have simple solutions.

ClientEarth challenges UK government

In response to the delays in implementing the Directive and improving air quality, ClientEarth, an environmental pressure group, brought judicial review proceedings against the UK government for its failure to implement the Directive.

In April 2015, the Supreme Court ordered the government to prepare new air quality plans for submission to the EU Commission, to ensure compliance.

Those plans were, however, the subject of further litigation by ClientEarth, and in May 2018, the UK government was one of several Member States referred by the EU Commission to the CJEU for breaches of requirements of the Directive regarding ambient levels of nitrogen dioxide.

Ella’s case

Though it is clear that high levels of ambient air pollution have detrimental effects on public health generally, it is not so straightforward to attribute the ill-health or death of an individual to pollution in the way that would be required, for example, to bring a civil claim for damages.

Shortly before Christmas 2020, however, a Coroner's Court in South London made a significant finding. It found excessively high levels of nitrogen dioxide in the vicinity of a stretch of the South Circular Road in Lewisham, South East London, had made a “material contribution” to the death from asthma in 2013 of a little girl, Ella Adoo-Kissi-Debrah.

Ella had lived around 25 metres from the South Circular Road. At the time, her mother had not been aware of the very high levels of pollution affecting that stretch of the road, but subsequently campaigned and pressed for the background to her daughter's death to be recognised at the inquest. The coroner's narrative verdict vindicated her efforts.

Coroner's inquests are primarily concerned with the how rather than the why of a person's death. It is a fact-finding process for the purposes of the executive branch of government, and for the benefit of the deceased's family and other interested persons. It is not the function of Coroner's Courts to determine issues of civil or criminal liability, which are matters for other courts.

Very often, a public acknowledgement of the facts, rather than any further remedy in the civil or criminal courts, is all the deceased's family are seeking. Any claim against the government, or any other person or entity, for damages for personal injury would involve separate proceedings in which causation, and all the other elements of civil liability, would need to be established from scratch.

The coroner’s findings of fact in Ella’s case have, however, prompted suggestions that group civil litigation might be brought in the UK in respect of air pollution – particularly in the light of a recent case in the Netherlands on climate change.

Urgenda Foundation litigation

The Urgenda Foundation, an environmental pressure group in the Netherlands, brought litigation against the Dutch government on climate change.

On 20 December 2019, the Dutch Supreme Court upheld previous decisions of the District Court of the Hague, and the Dutch Court of Appeal, that the Dutch government is obliged, under international human rights law and other treaty obligations, to urgently and significantly reduce national carbon emissions.

The case had attracted interest, including outside the Netherlands, because the judgments of the lower courts had suggested that the Dutch state could be considered to be civilly at fault, because it was in breach of a duty owed to citizens under the Dutch Civil Code.

It appears, however, the decision of the Dutch Supreme Court was essentially based on the state's duty to uphold the rights to citizens and others under articles 2 and 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, and on the duties of the state under the United Nations Framework Convention on Climate Change (UNFCCC) treaty.

The action was not an action for damages, but for an order directing the state to comply with a target under the UNFCCC.

Urgenda and ClientEarth litigation parallels

The Urgenda case can be seen as providing a Dutch parallel, relating to climate change obligations, to the cases brought by ClientEarth in the UK for judicial review of its government's failure to comply with the EU Air Quality Directive.

On the particular issue of air quality, however, other environmental pressure groups in the Netherlands have – so far – failed to achieve results similar to the Urgenda matter.

Before the Urgenda judgment by the Dutch Supreme Court, other Dutch courts had refused to entertain civil actions against the state for air pollution on the basis of human rights.

The outcome of the Urgenda case has led to a renewed push by NGOs for civil actions in the Dutch courts relating to environmental issues; the recent proceedings by ClientEarth and other NGOs against one of the petroleum majors are perhaps the most striking example of this.

So far, the UK government has been able to resist similar judicial review challenges to its policy on climate change, because of the actions it has taken pursuant to the UK Climate Change Act.

But this doesn’t mean a civil action for damages by affected individuals could not be raised on appropriate facts, either in the Netherlands or in the UK. It would, however, presumably be necessary in both countries for those claiming civil damages against their government to prove causation of harm and loss, and not simply an abstract breach of duty.

In the UK, governmental bodies are likely to be in the first line of attack when it comes to claims regarding air pollution. This is because where air pollution resulting from, for example, the presence of nitrogen oxides in the atmosphere of a particular location, it is the concentration of traffic in that area that causes the problem.

Diesel vehicles can be used in low traffic concentrations in rural areas without creating a problem regarding ambient levels of nitrogen oxides. The concentration of diesel fleets of buses and taxis in urban areas with heavy traffic results in unacceptable ambient levels of nitrogen oxides – but even in urban areas, concentrations of these pollutants fall off quite steeply away from particular hotspots of traffic congestion.

So, arguably, failures in traffic management, rather than the characteristics of particular vehicles, have caused the problem. That does not mean, however, that businesses such as vehicle manufacturers may not be potentially vulnerable to litigation.

The attraction of group actions in the UK

Readers may recently have received an email from a well-known firm of “public interest” solicitors inviting purchasers of a particular brand of diesel motor vehicle to join a group action against the manufacturer.

The allegation in this case appears to be that, by fitting a “cheating device” to vehicles being tested for their emissions, the manufacturer provided misleading information on the performance of those vehicles, with the intention that that information might be relied on by intending purchasers.

The invitation from this law firm, which is also available on that firm's website, suggests that claims may have a value of up to 75% of the purchase price of an individual vehicle.

In return for their conduct of the action, the firm of solicitors requests a modest conditional fee of 31% of any damages awarded.

Group actions (known as “class actions” in the US) under part 19 of the Civil Procedure Rules (CPR), which are typically conducted under conditional fee arrangements, are now an important means of pursuing environmental claims in England and Wales.

A number of firms of solicitors specialising in group actions have made it their business to research potential claims against defendants – very often, claims for nuisance in respect of alleged detrimental effects on residential properties resulting from industrial processes.

Solicitors research claims against defendants perceived as having particularly deep pockets, and increasingly are acting in cooperation with litigation funders.

Some firms have teams scouring local papers and social media to seek out complaints in particular localities that may provide potential opportunities for a large group claim.

The attraction for the lawyers is the prospect of a significant share in damages resulting from conditional fee arrangements, which can be multiplied by a large number of potential claimants.

Claimants in such actions are presented by the lawyers with the prospect of a potential windfall – and, in many cases, where the claimants had not previously imagined that they might have grounds for pursuing litigation.

A group action also pools each claimant’s risk of being ordered to pay the costs of the defendant(s) if the claim doesn’t succeed. In the past, that risk has been a significant deterrent to litigation, so litigation in the form of a group action now forms a key part of the business model of many specialist law firms.

Process for group actions in the UK

The pursuit of a group action under Part 19 of the CPR requires the making of a group litigation order (GLO) by the court, which has to agree that the proposed claims are suitable for a GLO.

Specifically, the court must consider whether, in the particular case, the multiplicity of individual claims brought by the firm that has conduct of the matter present “common or related issues of fact or law” to justify a GLO.

This often presents a challenge in the context of environmental claims, because a claim for nuisance for loss of amenity from industrial activities in a particular locality, for example, will often involve highly specific issues of fact relating to individual claims.

In the past, the courts were suspicious of speculative group litigation of this type, and may have been reluctant to make a GLO. But this attitude has changed significantly in recent times.

There have been several recent cases on the legal test to be applied when considering whether to grant a GLO for claims for compensation relating to the provision of financial services, or claims against the NHS. These cases show that courts now only require common issues of fact or law to be demonstrated at a relatively “high level” at the start of the litigation.

The recent Supreme Court decision in Mastercard v Merricks shows the same trend, though that litigation was conducted under specific statutory provisions relating to collective redress for anti-competitive conduct in the provision of financial services, rather than the more general provisions of the CPR.

Similar trends are emerging at a wider European level: several initiatives being pursued by the EU are aimed at encouraging Member States to provide methods for obtaining collective redress and allowing cross-border litigation against holding companies that may have deep pockets.

This may, in turn, encourage “forum-shopping” to pursue claims in jurisdictions where rules on conditional fee and similar arrangements, and group actions, are favourable to the conduct of mass litigation.

The future

The prospect of mass claims of this type presents a significant threat to corporate entities that may be perceived, by claimants, as having deep pockets.

Defending a group action claim, which can drag on for many years, can be very expensive. There will often be a significant commercial pressure to settle early with the firm bringing the claim – but this risks inviting further claims of a similar type.

An alternative strategy is to be proactive in all cases where there is a perceived vulnerability, to prevent or minimise the risks of a group claim being brought in the first place.

The direction of travel in the UK, following the recent finding about Ella’s tragic death, points towards a potential duty of care being inferred to prevent air pollution above permitted levels or risk the consequences, including potential class actions and civil liability.

In 2021, with the UK hosting the United Nations Climate Change Conference in Glasgow, we need to recognise that air pollution can not only contribute to global warming and climate change; it can also have more devastating personal consequences for us all.