Environmental costs rules under attack

In September 2015, the Gazette reported that the Ministry of Justice was consulting on changes to the Civil Procedures Rules in respect of costs in environmental (Aarhus) cases. The overriding response from representative bodies such as Wildlife and Countryside Link (on behalf of 18 environmental NGOs) and private firms such as Leigh Day was that the proposed reforms were a backward step, taking England and Wales into non-compliance with EU law on access to justice and the Aarhus Convention.

In fact, around 95% of respondents to the consultation opposed the majority of the proposals.

In her keynote speech to the Conservative party conference in October 2016, prime minister Theresa May vowed to ‘stand up for the weak and stand up to the strong’. It was therefore something of a surprise when the MoJ confirmed that it would be proceeding with the majority of the proposals to undermine the Aarhus costs less than a month later.

While some of the most detrimental proposals have been dropped, many remain – including requiring claimants to submit a schedule of financial resources when applying for judicial review (thus potentially exposing third parties to costs orders). The current fixed adverse costs caps of £5,000 (individuals) and £10,000 (all other cases) will be replaced with default caps set at the present level, but the defendant (or the court of its own volition) can apply to the court to vary (I assume increase) the level of the cap on adverse costs at any point in the proceedings.

The new rules will also remove ‘own legal costs’ from any calculation as to what is ‘prohibitively expensive’ for the claimant, attach separate caps to each claimant in multiple-claimant cases and make the process of applying for interim (injunctive) relief more onerous.

These proposals compound other changes to JR introduced under the Criminal Justice and Courts Act 2015, including exposing interveners to potential costs orders and removing the right to an oral hearing in cases deemed ‘totally without merit’.

Section 84 of the act gives the High Court the power to refuse an application for JR where it considers that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred – and requires the court to do so if the defendant requests it. I have already come across potentially arguable cases that have fallen at this hurdle.

It is lamentable that England and Wales is regressing while the rest of the UK and other EU countries work towards compliance with their international obligations

There is no evidential basis to support any of these changes. Both Leigh Day and environmental charity Friends of the Earth have requested information from the MoJ to support the contention that the process of JR either frustrates economic recovery or is ‘abused’ by civil society or environmental campaigners. None has been provided or published. In fact, statistics obtained from the MoJ in August 2015 confirm the opposite. While environmental cases represent less than 1% of the total number of JRs lodged annually, they demonstrate good success rates.

The cumulative effect of these proposals will be to deter all but the very rich from pursuing environmental cases. Those that are progressed are likely to suffer delay as time-consuming (and costly) satellite litigation detracts from the substantive issues. The moves are also at odds with positive developments in the rest of the UK.

The Department of Justice in Northern Ireland conducted a remarkably similar consultation exercise to the MoJ in 2015, but following widespread opposition it is now effecting positive amendments to the Aarhus system. Similarly, the Scottish government has strengthened the Protective Expenses Order (PEO) regime and invited views on further improvements to access to environmental justice in Scotland, including the possible establishment of a specialist environmental court or tribunal.

Sweden has such a court, in which claimants need no formal representation and receive a full merits review. It is not blighted by delay nor is the Swedish economy on its knees. It is lamentable that England and Wales is regressing while the rest of the UK and other EU countries work towards compliance with their international obligations.

While recognising the courts do not always find for the claimants in environmental cases (possibly as much to do with the limited scope of JR as the quality of the cases), the ability to bring them, and thus check the potential abuse of power, is an essential ingredient of any democratic society. Ongoing measures to undermine such processes offend the rule of law and expose weakness at the expense of fairness and justice.

Carol Day is a consultant Solicitor, Leigh Day