The government is seeking views on its proposals to change the regime for costs protection in environmental claims. Currently, where a claim for judicial review falls within the scope of the Aarhus Convention (on access to information, public participation in decision-making and access to justice in environmental matters), the amount recoverable in legal costs from the claimant if they lose is £5,000 for individuals, or £10,000 for organisations. If the claimant is successful, the maximum they can recover in legal costs from the defendant is £35,000.

In light of recent case law (including R (Edwards) v Environment Agency), the government has reconsidered its approach to this issue, and proposes the following:

(a) Widening the scope of the type of cases where costs protection is available in environmental cases to “reviews under statute” (rather than only judicial review). Certain planning appeals are explicitly mentioned; however, the consultation does not appear to intend that all statutory appeals will be included, so organisations with knowledge of a particular area of law may wish to seek clarification as to whether any relevant appeal would be included.

(b) Clarifying that only “members of the public” are eligible for costs protection. The Aarhus Convention appears to envisage that non-governmental organisations and legal persons could be members of the public, and not only individuals.

(c) Limiting the availability of costs protection in judicial review until after permission has been granted, to bring the regime in line with recent amendments to the rules in non-environmental judicial review (not yet in force).

(d) Adopting a “hybrid model” of the level of costs protection available, rather than the level being fixed. There would be a default level, but it would be open to either party to apply to vary the level. The level of the claimant’s cap would only be decreased, or defendant’s cap increased, in exceptional cases.

(e) Requiring claimants to file at the court and serve on the defendant a schedule of financial resources, including any financial support from third parties currently received or likely to be received in the future.

(f) Amending the rules on which party pays the costs of disputes as to whether a claim is an environmental claim or not. Where the court finds the claim is an environmental one, the defendant would pay the claimants costs on the “standard” rather than “indemnity” basis.The normal position that there is no order for costs where the claim is held not to be an environmental claim would not change.

(g) Clarifying the rules on cross-undertakings in damages in applications for an injunction in environmental claims by setting out a list of factors for the court to take into account.

Widening the scope of the regime for costs protection in environmental cases must be welcomed (provided it goes far enough), as it should remove the anomalous situation where costs protection depends on procedural law, rather than whether the subject matter of a claim is environmental. However, there is a danger that many of the remaining proposals will bring a new complexity to the rules in this the area, increasing the chances of satellite litigation (and legal costs, ironically, given that the Aarhus Convention is designed to prevent access to justice in environmental claims being “prohibitively expensive”).

Please contact our Public and Regulatory team if you would like more information on how your organisation may be affected by the proposals. The consultation closes on 10 December 2015.

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Melanie Carter

Partner and Head of Public & Regulatory

+44(0)20 7551 7615

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Posted on 07/10/2015 in Legal Updates

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