For many people, the cost to them personally of protecting the environment is measured in multiples of six pence carrier bags, or at the rather grander end of the scale, the difference in price between standard and hybrid options on their next new car. For individuals and organisations at the ‘coal face’ however, the cost is usually more substantial and more keenly felt.
Bob Hanlon, Costs Lawyer & Advocate, looks at the protections in place for litigants seeking judicial review in environmental protection cases and the recent decision in R (On the Application of (1) Royal Society for the Protection of Birds (2) Friends of the Earth Ltd (3) Client Earth [Claimants]) v (1) Secretary of State for Justice (2) Lord Chancellor (Defendants) & Civil Procedure Rules Committee (Interested Party)  EWHC 2309 (Admin).
Prior to 28 February 2017, claimants were guaranteed automatic cost caps when bringing a judicial review against decisions in relation to environmental claims which came within the scope of the Aarhus Convention 2001.
The Aarhus Convention was implemented in the EU by the Public Participation Directive 2011/92 ar. 11 (four) and required public bodies to ensure that the public had access to a procedure to challenge decisions.
There were provisions in both art.9(4) of the Convention and the Directive, that judicial review procedures should not be ‘prohibitively expensive’.
The 2013 environmental cost protection regime provided that unsuccessful claimants’ liability for costs were capped at £5000.00 for individuals, and for companies, at £10,000.00. Defendants’ liability for claimants’ costs were capped at £35,000.00. However, new rules contained in the Civil Procedure Amendment 2017 Rules 8 (5) which amended Part 45.44, came into effect on 28 February 2017 and introduced a provision allowing judges to vary cost caps, if satisfied that doing so would not make the proceedings prohibitively expensive for the claimant.
The RSPB, Friends of the Earth and Client Earth sought judicial review of the Civil Procedure Amendment Rules. The claimants raised three issues:
- The provision allowing for variation in costs at any stage militated against the requirement that costs be reasonably predictable.
- The rules should provide for private hearings when the financial details of claimants or a third-party supporter were considered.
- The Claimants’ own costs should be taken into account when assessing whether the caps were appropriate.
The court held that the provisions of Directive 2011/92 art. 11 were designed to ensure wide access to justice and to ensure that the public play an active role in the preservation, protection and improvement of the quality of the environment.
The Court found that there would be a significant deterrent effect on meritorious claims if there was no certainty at the outset in relation to a claimant’s potential costs liability. Mr Justice Dove ruled that the CPR generally required that disputes about the level of cost caps should be raised at the point of acknowledging service and a decision on cost capping made at an appropriate early stage of the proceedings. Later variation applications should not be made without good reason.
Dove J also held that a hearing concerning variation of costs caps was a hearing at which confidential information would arise. Changes were required to CPR PD 39A para. 1.5 so that applications for variations of the default cost caps in Aarhus Convention claims should be included as a type of hearing which should be listed in private.
An MOJ spokesman is reported to have said: “We are pleased that the High Court supports our approach to environmental costs protection which ensures individuals are not expected to pay above their means”.
The protections in place, and now to be further extended following this judgment, should ensure that the cost of bringing claims for judicial review in environmental protection cases will not be prohibitively expensive. Whilst attempts to impose fixed costs on various areas of law (with similar stated objectives) are met with dismay in many quarters, this is an area in which the majority would likely agree that the ends justify the means.
Food for thought when next at the checkout.
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