It is always pleasing to see your work cited but the pleasure is mixed with surprise when you see also that some account has been taken of it. I had this unusual experience over the Summer when the Ministry of Justice accepted that research work that I had helped conduct did indeed appear to show that plausible environmental judicial review applications failed for lack of funding.
On 28 August 2012, The Ministry of Justice produced its response to the consultation on capping costs in environmental claims when it published Cost Protection for Litigants in Environmental Judicial Review Claims. The consultation had sought views on implementation of the UK’s obligations under theAarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Aarhus Convention”) and Directive 2003/35/EC(“the Public Participation Directive”), in England and Wales.
The UK Government is (since 2005) a party to the Aarhus Convention, which provides environmental litigants with enhanced rights of information, participation and access to justice. The third pillar of the Aarhus Convention concerns access to justice in environmental claims which ought not to be ‘prohibitively expensive’.
The EU is also a party to the Aarhus Convention and the Public Participation Directive amends Directives on Environmental Impact Assessment and Industrial Emissions demanding that Member States allow citizens access to court procedures to challenge decisions taken in these contexts.
In December 2009, along with Radek Stech and Debbie Tripley, I co-authored a report, Cost Barriers to Environmental Justice, analysing over 700 cases between 2005 and 2009. This revealed that 56% of environmental judicial review cases passing through the Environmental Law Foundation, which lawyers had advised could proceed as valid claims, did not go forward for fear of legal costs. The work is cited in the Ministry of Justice‘s response which states that:
“The Government therefore takes the view that costs protection should apply from the time the claim is issued, provided that the claim is clearly identified as being within the scope of the public participation provisions of the Aarhus Convention.”
The confining of its recommendation only to cases under the Aarhus Convention shows the motivation of Government in introducing this claim as there are infraction proceedings before the European Court of Justice arguing that in the United Kingdom legal proceedings can prove too costly, and that the potential financial consequences of losing such challenges prevents NGOs and individuals from bringing cases against public bodies.
The Government sees the solution in the formalisation and extension of protective costs orders (PCOs). These can assume great significance in protecting litigants from hardship that might be caused by the rule that ‘costs follow the event’ applies without variation in judicial review cases. Without a PCO, the applicant is exposed in the event that the application is dismissed to (at least) a proportion of the winner’s costs and disbursements. The courts have already begun to apply a strong presumption that a PCO will be granted where an environmental case is brought in the ‘public interest’, which has been interpreted of late as including cases in which the Public Participation Directive is invoked: see R (on the application of Garner) v Elmbridge BC and others  EWCA Civ 1006.
The latest proposals suggest that there should be a protective cap in all Aarhus Convention cases set at a level of £5,000. The cap is not dependent on permission for the judicial review having been granted. If permission is refused the claimant’s liability will be capped at £5,000. The cap is to be fixed with no provision for challenge.
The Government recommends that there should be a cross-cap set at £35,000. Environmental NGOs opposed this in the consultation arguing it might inhibit the claimant from making a proper claim or mean that not all costs may be recovered even if the claim succeeds. It was said it would make it more difficult for solicitors acting under a conditional fee agreement because they will face not only the risk of losing but the risk of not being able to recover full costs if successful. Again this amount is not open to challenge.
The proposals will now go forward to the Civil Procedure Rules Committee with a view to implementation at the end of this year. When drafting, it may prove difficult in practice to define and determine quite which environmental judicial review cases might be said to involve public participation issues based on Aarhus. It also remains to be seen how many cases can be successfully funded with in the cross cap figure of £35,000, bearing in mind that this includes VAT. Finally as with any financial limit there will be pressure to up-date and raise this over time. Nonetheless, in general this is a welcome development and the sort of solution which we, in producing our report, and others have hoped for some time.