The case will hinge on the UK’s implementation of the Aarhus Convention of 1998 (in force 1 October 2001). Aarhus has three pillars, access to information, public participation and access to justice. The Commission will be deciding on compliance with the third pillar. Aarhus requires that the public have access to legal procedures to challenge acts or omissions by private persons or public authorities that breach national environmental laws (Art 9 (5)); that such a review be fair ‘fair, equitable, timely and not prohibitively expensive’ (Art 9(4)) and in particular that ‘financial and other barriers’ be removed or reduced’ (Art 9(5)).
The general principle in civil proceedings in the UK is that the unsuccessful party will be ordered to pay the costs of the successful party. The UK Government’s view up until now has been that Aarhus is properly implemented in the UK where there is legal access to the courts in environmental matters, low court fees and legal aid for the deserving. Further, the courts have discretion as whether to impose costs orders, can cap costs and decide on what type of cost order to impose (CPR Pt 44.3). In judicial review there are also Protective Cost Orders (PCO), or protected order for expenses’ in Scotland, which can be made at any stage of the proceedings and which give the claimant some certainly as to their level of exposure to costs.
However, the courts seem to take a different stance from the Executive’s as they have made it clear that not awarding costs against the losing party is ‘to be regarded as a highly exceptional course’ (R (on an application of Friends of the Earth and another) v Secretary of State for the Environment, Food and Rural Affairs and others  EWCA Civ 1950). Given that costs in JR procedures can range between £70,00 and £150,000 it is not surprising that the courts have stated that ‘an unprotected claimant […], if unsuccessful in a public interest challenge, may have to pay very heavy legal costs to the successful defendant, and that this may be a potent factor in deterring litigation directed towards protecting the environment from harm.’ (R(Burkett) v LB Hammersmith and Fulham  EWCA Civ 1342).
In 2007 the European Commission commissioned a report on access to environmental justice in 25 Member States which classified the UK as one of the worst cost regimes for access to justice in environmental matters (amongst the bottom 5) and concluded that current costs rules represented a “significant obstacle to access to justice in the United Kingdom”. The main issue not being court fees but legal and expert fees and litigation costs as the proceedings progress.
Legal access to justice in environmental cases is in the UK manifested largely in review of government decisions by judicial review and here PCOs are available. However, they are only available in certain cases taking into account (i) whether the issues raised are of general public importance; (ii) the public interest demands their resolution; (iii) the applicant has no private interest in the outcome of the case; (iv) bearing in mind the financial resources of the applicant and respondent, and the amount of costs involved, it is fair and just to make an order; and (v) unless the order is made, the applicant will probably discontinue the proceedings, and will be acting reasonably in so doing (R (Corner House) v Department of Trade and Industry,  1 WLR 2600). But these are tests which are not easy to meet, for example there is no definition of public interest and this would not include the wider public interest involved in implementing Aarhus. Standing requires an interest to be proven but CPO rules requires no private interest to be involved in the outcome of the case, although this test is now a material consideration and not a strict rule (see R(McCaw) v City of Westminster Magistrates Court and Middlesex S.A.R). All of this creates uncertainly and not knowing exposure to costs is the very thing that deters litigants.
The 2008 report ‘Ensuring access to environmental justice in England and Wales’ (known as Lord Justice Sullivan’s report) concluded that current rules on costs in England and Wales ‘inhibited implementation of Aarhus’. On the back of the Sullivan report Lord Justice Jackson was commissioned to report on access to justice and in December 2010 the Jackson report finally confirmed that in some areas of civil litigation in the UK costs ‘are disproportionate and impede access to justice.’ Lord Justice Jackson main recommendation if that for judicial review in environmental cases claimants should only pay costs that they are able to bear, reflecting the claimants’ financial circumstances and their conduct during the proceedings.
The Environmental Law Foundation also carried out a very useful empirical study published in January 2010 that points to costs being a barrier to justice. The study investigated the following main questions: what proportion of judicial review cases received a negative opinion as to the prospects of success at judicial review? what is the proportion of judicial review cases where clients were advised to take further steps towards judicial review? and given the answer to the above question, what proportion of clients did not proceed primarily because of costs? Over 700 cases dealt with by ELF over four and a half years, across the UK (mainly the South East of England (25.5 percent) and Greater London (17 percent)) were analysed. Of those cases, 29% concerned statutory and judicial reviews and 34% concerned development. Of statutory review cases, 56% were categorised by specialist lawyers as having a reasonable chance of success but did not proceed due to costs. This is perhaps not surprising if we consider the likely costs and the fact that nearly 60 percent of ELF’s clients earned less than £15.000.
Can a democracy such as the UK take any more access to justice hits? Possible ways out of this mess have been spelt out in the Jackson Report but the Government has yet to respond. Perhaps it is waiting for April 2010 and the publication of the UN Aarhus Compliance Committee’s response to two complaints that environmental litigation in the UK is ‘prohibitively expensive’. Or maybe they are waiting for the results of the general election? All we can say is watch this space for further updates.