Gordon Wignall

Environment

“He is a winner with clients – he’s easy to work with and is approachable… great with the clients and builds a real rapport with the court.” “A junior of choice for environment”; “His knowledge of his area is extremely deep and extensive.”
Chambers UK Bar Guide

“His written work is second to none and he has an encyclopaedic knowledge of environmental law.”
Legal 500

Gordon Wignall has a specialist understanding of all aspects of environmental and planning work. He has a particular interest in the waste, recycling and associated industries and in the agricultural and related sectors (extending to habitats law). Pollution issues, including contaminated land, flooding, noise, odour, fire, air quality and water pollution, constitute a significant part of his work. He is a recognised expert in litigation relating to private, public and statutory nuisance (including s.82 proceedings) and has written and lectured in the area.

Gordon had an unusual training which encompassed both complex commercial law as well as serious crime. This has given him a strong grounding in both written and oral advocacy and there is a balanced application of both in his practice. He is familiar with conflicts of laws and arbitration principles. He advises and provides representation in overlapping areas which have environmental issues as their subject matter, including contract and professional negligence.

He has been instructed in many cases covered by a group litigation order.

Gordon is accustomed to working under pressure and as part of a team. As well as acting for private operators on the receiving end of applications for injunctive relief, he has obtained injunctions on behalf of local authorities where other remedies have proved inadequate. He is familiar with issues of privacy and confidentiality and has been instructed in proceedings before the Investigatory Powers Tribunal (RIPA surveillance powers).

He is very familiar with costs issues in all courts tribunals, also being a recognised advocate in costs cases. Even at initial stages of his instructions he will have in mind the likelihood of the recovery of costs. He has advised and provided representation in respect of the separate liabilities of group undertakings and their individual officers (including piercing the corporate veil).

Recent environmental cases include a 9-day hearing in a widely publicised residential noise nuisance dispute, judicial review challenges to the environmental regulation of waste oils and contaminated soils, ongoing group litigation about manufacturing from timber and animal rendering and the criminal consequences of river pollution and fire.

He is a co-author of the Chambers 2018 Environmental Law Guide (edited Hogan Lovells).

Not surprisingly, Gordon is especially pleased to be able to assist in claims where complex expert evidence needs to be presented or disputed. This may arise in any of the areas in which he provides and has provided assistance, whether in civil, criminal or administrative proceedings, including the following:

Experience by reference to subject areas, businesses and trades:

• Agricultural feed production and bedding
• Animal rendering (classes I and III)
• Animal bedding
• Aluminium foundries
• Asbestos
• Biomass operators
• Brassica growers
• Car manufacturing
• Colliery working (and spoil heaps)
• Combined heat and plant operators
• Composting plants
• Construction sites
• Contaminated soils
• Controlled waste
• Dairy processing (cheese, milk and whey)
• Demolition contractors
• Demolition waste
• Developers
• Diesel spills
• Dog owners
• Dust generation
• Fertiliser manufacturers
• Flooding
• Gamekeepers
• Garages
• Exercise gym in Central London
• Highways
• Kennels
• Kerosene spills
• Knackermen
• Land drainage
• Landfill operators
• Landowners
• Meat processors
• Motor racing circuits (racing car, motocross and motorcycle)
• Motorcycling training venues
• Music festivals
• Nursery school business
• Oil spills
• Paint manufacturers
• Paper/cardboard collection
• Potato washing plants
• Public houses
• Rendering operators
• Reservoirs
• Residential occupiers and their premises (tonal, impact and services noise and vibration)
• Retail development
• Scrap yards
• Septic tanks
• Sewage treatment plants
• Sludge handlers
• Smoke, flues, chimneys and stacks
• Spoil heaps
• Steel foundries
• Storage tanks
• Subsidence
• Transportation
• Trees
• Tree root subsidence and ‘heave’
• Turbine operators
• Vehicle testing and maintenance operators
• Waste brokers
• Waste oil (processed and re-refined products)
• Waste paper brokers and exporters
• Waste transfer stations
• Waste water treatment plants
• WEEE
• Wood recycling and treatment

Civil law and statutory nuisance claims

Gordon provides pre-litigation advice, such as for producers seeking approval for end-of-waste status and for parties to leasehold agreements (advising for instance whether a break notice or notice of termination has been validly served). He has experience in contractual and also in trespass / boundary disputes, which he uses in appropriate cases. He has presented numerous claims under the group litigation principles used in the civil courts (he provided claimant representation in the VW emissions proceedings).

Many claims in which Gordon is involved concern issues relevant to pollution. He has an
extensive track record of private, public and statutory nuisance proceedings, litigating the following issues, many of which are recurrent topics:

• Compensation levels in cases of amenity damage
• Compensation where remediation is required
• Compensation in ‘stigma’ cases – oil, kerosene and other spills
• Costs in statutory nuisance proceedings
• The corporate veil: when can it be drawn aside?
• Discovery of documents in both criminal and civil contexts
• The existence of alleged easements to pollute (noise and odour)
• Evidence corroborating complaints of nuisance: its legitimate extent
• Flooding, including ‘the common enemy’ (Gordon’s Court of Appeal case on the
‘common enemy’ as a defence to flooding remaining the lead authority on the topic);
he is familiar with the initial expert evidence required to establish causation
• Group Litigation and Group Litigation Orders
• Leases: can a break clauses be activated where there is an issue as to pollution?
• Leases: is the change in an energy subsidy a frustrating event?
• Injunctive relief: when should it be granted?
• Injunctive relief: is compensation an adequate alternative?
• Injunctive relief: a simple order of abatement, or should works be required?
• Interim injunctive relief
• Why make a claim in negligence if there is a claim in nuisance?
• Pre-action disclosure
• Prescription – has the right to pollute been established?
• Public nuisance as a means of defeating a right to prescription
• ‘Reasonable user’ as a defence in nuisance
• Sentencing under the environmental sentencing guidelines
• Statutory nuisance and ‘best practicable means’
• Strict liability for fire, spills and other dangerous activities
• Threshold considerations: is there a nuisance at all?
• Costs budgeting and liability for adverse costs

Gordon is pleased to assist in smaller statutory nuisance cases (as well as in s.82 proceedings).

His experience includes the following (at first instance or on appeal), often requiring detailed expert evidence as to both the threshold requirements and the question of ‘best practicable means’:

• noise from car works, garages, gyms, colling plant, racing tracks, schools, dogs, kennels,
construction works, parties, refrigeration units, festivals and pubs
• odours, smoke and dust from food plants, biomass units, composting plants, potato
washing units, sewage treatment plants, foundries, renderers and other works.

Defending environmental prosecutions

Gordon has represented defendants (both corporate and individuals) in the Magistrates Court, the Crown Court and on appeal, including in the Court of Appeal. (His reported cases concerning the admissibility of evidence are in the context of murder and were decided on appeal to the Privy Council).

The criminal cases he has undertaken have been concerned with various offences arising out of the management and handling of waste, asbestos, fraud, breaches of abatement notices contrary to the statutory nuisance regime, offences contrary to the Control of Pollution Act and HSE prosecutions.

Gordon was instructed in the Crown Court in the first major prosecution by the Environment Agency concerning the transfrontier shipment of waste, and he has practical experience in transfrontier issues relating to waste electrical products, metals and paper products. He has advised or provided representation for corporate and individual clients in respect of shipments destined for Rotterdam, Saudi Arabia, West Africa, Cuba and South America. TFS prosecutions have concerned issues which include the meaning of “waste” and the factual question whether there has been ‘contamination’. His knowledge of international trade documentation has been of considerable assistance.

The criminal proceedings in which Gordon has been instructed have required him to address the following specific issues (all in the context of prosecutions concerning waste sectors mentioned above in the subject areas listed in this c.v.):

• Allegations of consent, connivance and neglect against directors and other officers
• ‘Blending’ of waste (flock and trommel fines)
• Asbestos
• Causes of pollution
• Dairy processing
• Corporate offences
• Costs recovery
• ‘Culpability’ (deliberate, reckless, negligent etc.)
• Disclosure (an extensive application process in one case finally resulting in the offering of
no evidence by the prosecution)
• Environment Agency ‘under-enforcement’ and its consequences for defendants
• Fires
• Fraud charges (with no evidence being offered in one case on the entering of pleas)
• ‘Harm’ categorisation
• Illegal landfills
• Landfill tax avoidance
• Landfill cover
• Landfill spreading
• ‘Mis-descriptions’ of waste: incorrect waste codes
• Operating waste sites without a permit or outside the terms of a permit
• Operating waste sites outside the terms of permitting exemptions
• Ownership of land used by others to spread processed waste
• Sentencing under the Environmental Offences Guidelines 2014 (including mitigation as
to immediate / suspended terms of imprisonment)
• Storage of waste in excessive quantities
• Transfrontier shipments of waste consignments, including the consideration of
commercial and export documentation relevant to different jurisdictions
• Regulations 12, 38 and 41, Environmental Permitting Regulations 2010 (and successor
regulations)
• Section 33, Environmental Protection Act 1990
• Section 82 proceedings (summary proceedings by persons aggrieved of a statutory
nuisance)

Public (administrative) law proceedings / permits, licences and PINS

Gordon‘s environmental work includes judicial review and statutory appeals under the planning regime, including ‘conventional’ planning cases (such as housing or retail development). He was involved in a recent challenge to the regulation of the waste oil industry.

His PINS cases also regularly concern suspension notices, enforcement notices and works notices, as well as waste exemptions. He has acted for many of the most well-known recycling companies active in England & Wales. The question whether to apply for judicial review of a regulatory notice or to initiate a statutory appeal (or even both) can be a very difficult one, a matter on which he has advised and provided representation on a number of occasions.

Gordon was counsel for the successful claimant in the main judicial review authority concerning enforcement notices under the Permitting Regulations, and continues to have an in-depth understanding of the circumstances in which an urgent application to the High Court is necessary in order to keep a business alive when faced with a regulatory notice. He also has experience of the practical matters necessary to contest the rarely-used provisions of the Water Resources Act used by the Environment Agency to protect water from pollution.

Gordon is familiar with the correct application of the Core Guidance procedures invoked by the Environment Agency when rejecting an application for an environmental permit on grounds of competence.

Planning appeal work for waste and recycling clients has included issues relating to noise, applications to introduce machinery, agricultural waste, spoil and landfill sites and WEEE.

Gordon has advised applicants in many regulatory areas where a permit or licence is required, including those issued by the Environment Agency and Natural England. He has acquired a good working understanding over the years of English and Welsh law as it has developed under EU law, including the Waste Framework Directive, Industrial Emissions Directive, Air Quality Directive, By-Products Regulations, Water Framework Directive, Habitats Directive and the Birds Directive. He is very familiar with canons of both domestic and EU legislative interpretation and their application to detailed facts.

As to permitting exemptions, Gordon has successfully presented judicial review applications in the High Court in which it has been alleged that the UK has not transposed the exemption provisions of the Waste Framework Directive correctly. He has advised processors and re-refiners of waste oils as to the scope of various provisions emanating from the Waste Framework Directive. He has acted for various waste brokers and transporters.

Gordon has some 30 years’ experience of judicial review, case stated and statutory appeal
proceedings in a number of the subject areas set out above at the beginning of this c.v.
Particular administrative / statutory appeal issues have included the following:

• Aarhus and costs issues
• Aarhus and public participation
• The boundaries of an “abuse of power” and legitimate expectations
• ‘Better regulation’ and regulatory reform issues
• The ‘duty to give reasons’
• The ‘duty of sufficient inquiry’ (before serving a regulatory notice)
• End of waste
• Challenges to regulatory enforcement decisions and notices
• Environmental permits and ‘competence’ of the operator
• The EU Charter of Fundamental Rights and its application
• Exemptions under the Environmental Permitting Regulations
• Licences to shoot under the Deer Act and habitats legislation
• Local authority housing land supply
• ‘Localism’
• NPPF (‘National planning policy framework’)
• The overall proportionality of a decision under challenge
• Statutory interpretations and the meaning of rules and regulations
• Statutory nuisance: judicial review or case stated on appeal?
• Sustainable development
• Whether a decision is unreasonable (in a legal sense)
• Waste Framework Directive issues

Whilst residential and retail planning appeals have been part of his practice these too tend to include issues relating to the Aarhus convention and EU-related matters such as Environmental Impact Assessments.

Additional

In appropriate circumstances direct access instructions are accepted, including at the pre-issue stage of litigation. Referrals can be provided to suitably qualified solicitors.

Gordon has been a joint author of the commended website “Waste Management Permit
Lawyers” which contains information as to permitting and pollution control.

See www.wiglaw.co.uk

Civil & commercial

“Understands the complexity of multi-party claims and is particularly knowledgeable on CFAs.”
Legal 500

“He is very impressive on a detail and tactical level, using processes and applications to take a tough line.”
Chambers UK Bar Guide

Gordon has a wide and varied practice with practical experience of different regulatory and specialist areas. He has a special interest in group litigation.

He is authorised to practice from the Law Library, Dublin.

Group litigation

Gordon has conducted and assisted in the management of numerous multi-party actions
under the GLO provisions of Part 19, CPR (and otherwise). These include the following types of cases:

• Financial services (including the FSMA collective redress procedure)
• Professional negligence (solicitors and banks)
• Consumer protection
• Landlord and tenant
• Environmental (pollution) cases
• VW emissions
• Personal injury and defective products

He has also advised and provided representation in competition and data protection cases.

He has a great deal of expertise in costs and litigation funding and was formerly on the
editorial board of the White Book (Civil Procedure Rules). He was the editor of the Law Society Guide to CFAs. (See further below.)

Individual claims

Gordon is experienced in contractual disputes: sale of goods of different descriptions,
breaches of covenant and general contractual disputes of various descriptions.

In private individual cases, he has experience of restraint of trade (including injunctive relief), wrongful dismissal, restitution, ‘piercing the corporate veil’, breach of confidence and advice and representation in disciplinary proceedings.

His fraud experience includes all forms of claims including FSA-unregulated investments and offshore property schemes (including CEPPs).

In negligence-related matters his case work has included claims against banks for negligence in the conduct of mortgage and property transactions and claims for and against IFAs and other professionals.

He is a recognised expert in private nuisance, including flooding, leasehold flats, noise
nuisance, smoke, animal by-products and WEEE. Other special areas of interest include waste, ship recycling and waste transhipment.

He has undertaken judicial review work in various regulatory contexts, especially in
environmental and financial services cases. In appropriate cases he defends criminal
allegations made by regulators.

Injunctive relief

Gordon is familiar with the principles relating to injunctive relief for the preservation of trust property; freezing injunctions; restraint orders; receivership (including receivers accounts), both at first instance and at appellate level.

International work

His caseload has included claims concerning Nigeria, Pakistan, Cyprus, Cap Verde, Channel Islands, France, Eire, Portugal, Holland, Spain and jurisdictional disputes and relevant international conventions and treaties. His experience in jurisdictional and international litigation includes issues concerning the Brussels Regulation and Hague Conference issues as well as the CJJA 1982. Gordon was instructed in the first major Crown Court prosecution of transfrontier waste offences.

Costs

As the editor of the Law Society’s Guide to CFAs and a former contributing editor to The White Book, Gordon has an extensive costs practice including wide experience of multi-party actions and insurance funding. His experience covers DBAs, CFAs, CCFAs, entitlement to legal aid funding and litigation funding, both domestic and nondomestic, including foreign arbitrations.

Gordon has a special interest in the funding of litigation and advised members of the House of Lords on the application of LASPO and the implications for the UK’s obligations under the Aarhus Convention. His specialist advisory work includes the drafting of funding vehicles connected with different forms of litigation funding, some including insurance provision.

Some public access work is exceptionally undertaken.

Regulatory

Gordon is an experienced regulatory practitioner with a special interest in the generic approach to regulation taken by both legislators and regulators. He provides advice and assistance in all forums (judicial review, statutory tribunals and criminal as well as damages claims). He makes active use of EU provisions, and has an interest in competition/state aid issues, including especially network industries and the role of the state pre- and post- liberalisation. He appears in the Competition Appeal Tribunal.

He is a recognised specialist in litigation funding and costs expert with a good understanding of regulatory issues concerning solicitors (including procurement). He has recently advised local authority legal departments on social security procurement matters and as to the extent to which they can charge for services.

Gordon has drafted many agreements requiring an understanding of regulatory issues concerning solicitors, EU instruments concerning various issues and the protection due to consumers, FSMA and insurance matters. See also his specialist profiles on environmental & planning law and financial services law. Work in 2016 has included advice and advocacy in connection with the regulation of the housing sector, in particular the requirement to give reasons and to consult prior to the service of enforcement notices.

Financial services

Gordon has a wide and varied practice with a full understanding of FSMA (as amended), the FCA Handbook, FOS and the FSCS. He is familiar with relevant EU principles and comfortable with reading any underlying EU regulations. Regulatory advice necessarily entails going back to MiFiD when considering the Handbook.

He has advised for and against IFAs and has a special interest in issues concerning limitation periods and in cases concerning mortgages and remortgages. Judicial review work forms a substantial part of his practice as well as civil claims.

Gordon advised and acted for claimants in respect of the Arch-Cru redress scheme, and is familiar with group litigation practices and procedures.

He obtained the initial ‘Mareva’ relief for claimants in the Arck claims.

He has acted for various groups of claimants in respect of Harlequin Caribbean properties.

He has acted for claimants aggrieved at the sale of Keydata products.

Advice has included consideration of the following: COBS, MCOB, DISP, the scope and effect of s.39, FSMA in respect of appointed representatives, the promotion of collective investment schemes, the FSMA Transitional Provisions Mortgage Order 2004 and many other relevant provisions in cases of professional negligence, breach of fiduciary and statutory duties.

Gordon is prepared to act directly for claimants on damages-based (contingency) terms, but these agreements are rare and are usually where solicitors cannot act because of the existence of some conflict.

Recommendations

Education

• MA (University of Oxford)
• Karmel Scholarship prizewinner (commercial law), Gray’s Inn
• Norman Tapp memorial prizewinner (mooting), Gray’s Inn
• Diploma in EU Law (King’s College London, 2014)
• Diploma in EU Competition Law (King’s College London, 2015)
• MA, EU Competition Law (King’s College London, 2016)

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