Costs protection for litigants in environmental judicial review claims – an update

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The High Court has ruled that costs rules revised in February 2017, which give the courts the power to vary or remove automatic costs caps in environmental judicial review claims, comply with EU law. The High Court also addressed two further issues: the timing of applications made by defendant public bodies and developers to vary or remove a costs cap and the potentially chilling effect of public exposure of the private financial details of claimants.

Background

The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) requires contracting states to ensure that the costs of taking certain environmental challenges in court are not prohibitively expensive.

The UK is a signatory to the Aarhus Convention and our court rules set out a specific costs regime for such claims which determines how much individuals and charities have to pay if they lose an environmental judicial review claim against a public body or developer. From April 2013 to February 2017, the regime set automatic caps on costs liability, limiting the liability of an unsuccessful claimant to £5,000 (for individuals) or £10,000 (in all other cases) and that of an unsuccessful defendant to £35,000. However, in order to discourage unmeritorious claims, the rules changed in February 2017 to give the court the power to vary or remove a costs cap according to a claimant’s financial resources.

In R (The Royal Society for the Protection of Birds, Friends of the Earth Ltd and another) v Secretary of State for Justice and another [2017] the claimants, who have a particular interest in the protection of the environment, commenced judicial review proceedings to challenge the revised rules on the basis that they denied access to the environmental justice that is required by the Aarhus Convention. The claimants maintained that the revised rules constituted a significant deterrent or chilling effect on meritorious claims if there was no certainty at the outset as to the potential costs liability of a claimant in an Aarhus Convention claim.

Decision

On 15 September 2017, the High Court (Planning Court) decided that:

  • Court’s power to vary costs caps — the revised rules, which give the courts the discretion to vary or remove costs caps, comply with EU law implementing the Aarhus Convention and ensure that access to environmental justice is not prohibitively expensive;

  • Private hearings — if a dispute in relation to the variation of a costs cap were to proceed to a hearing (as opposed to being dealt with on the papers at a time when the claimant’s financial information would remain confidential) then the hearing should be held in private. This is to prevent the disclosure of confidential financial information of the claimant acting as a deterrent to bringing an Aarhus Convention claim. The court rules should be amended to this effect; and

  • Timing of applications — the court also made an observation about the timing of applications by defendant public bodies and developers to vary or remove a costs cap. It said that, as a matter of practice, any application should be included in the ‘acknowledgement of service’, i.e. before the defence is filed. Failure to apply at this stage would be in breach of the EU principle of reasonable predictability unless it could be demonstrated that the claimant had provided false or misleading information in the schedule of financial resources or there had been a material change in the claimant’s financial resources.

Comment

The decision provides welcome clarity on the validity of the revised rules on the variation or removal of costs caps in Aarhus Convention claims, the timing of applications made by defendant public bodies and developers to vary or remove a costs cap, and that hearings should be dealt with in private rather than in open court (a further rule change is expected which will give effect to this recommendation).

If you would like advice or assistance in relation to the above, please contact a member of our Dispute Resolution Team or Planning & Environment Team.

RELATED: PLANNING & ENVIRONMENT - EXPERTISE  DISPUTE RESOLUTION - EXPERTISE  

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