After a decade of domestic and international scrutiny, the government introduced bespoke costs rules for environmental cases to comply with European Union and international law in 2013. The new rules offer many claimants access to environmental justice for the first time in years.

However, a current Ministry of Justice consultation seeks to seriously undermine these relatively new rules.

The MoJ proposals include extending the costs regime to cover certain environmental statutory reviews (essentially reviews raising issues covered by the EC Public Participation Directive (PPD)). However, it would appear that this will extend to less than 5% of cases, leaving the remaining 95% - many concerning important environmental issues such as the meaning of harm in the green belt or the impact of wind farms and solar energy development - ineligible for costs protection.

Whilst almost certainly unintentional, the proposal to confine eligibility to a member of the public could exclude community groups, parish councils and even environmental NGOs from costs protection. The proposals may also exclude legislation impacting on the environment that does not specifically mention the environment in its title or heading (such as environmental taxes, control of chemicals or wastes, exploitation of natural resources and pollution from ships) from review.

Wildlife and Countryside Link (which brings together 46 wildlife and environmental organisations) is particularly concerned about proposals to remove the advance certainty claimants currently enjoy with regard to legal costs in environmental judicial reviews.

Firstly, costs protection would be made contingent on obtaining permission to proceed with an application for JR, thus exposing claimants to what could amount to prohibitively expensive legal fees before costs protection kicks in. Secondly, defendants - and the court of its own motion - would be allowed to challenge the level of the ‘default’ caps on adverse costs liability if they believed the claimant could afford to pay more.

Such challenges would be facilitated by the requirement for the claimant to submit a schedule of financial resources specifying third-party support to the court when submitting an application for JR. As the need for certainty with regard to costs in environmental cases was confirmed by the Court of Justice of the European Union (CJEU) as a result of infraction proceedings against the UK, the proposals may see the UK government back in the European court to face further sanctions.

The proposals also include increasing the current levels of the adverse costs caps from £5,000 for individuals and £10,000 in all other cases to £10,000 and £20,000 respectively. However, commentators have pointed out that these figures do not represent the claimant’s total costs liability – they must also pay the court fee (just under £1,000) and their own legal costs, which on average total around £25,000. The total current costs exposure of £31,000-£36,000 is already prohibitively expensive for many claimants, particularly individuals.

Finally, the consultation paper also contains proposals restricting the availability of interim injunctive relief. Applications must again be made by a member of the public and there will be a requirement on the court to have regard to the combined financial resources of multiple claimants when making decisions about cross-undertakings in damages. As information disclosed by the MoJ in November 2015 confirms, there were only twelve applications for injunctive relief in Aarhus Convention claims between April 2013 and May 2015, the proposals could be described as something of a sledgehammer to crack a nut.

Link also believes the proposals are disproportionate in light of the government’s failure to adduce any evidence, data or even a credible narrative, to show that environmental claims frustrate economic recovery or clog up the Administrative Court. In fact, evidence I obtained from the ministry in 2015 confirms the opposite.

The number of environmental cases lodged annually in England and Wales represents a very small (less than 1%) percentage of the total number of JRs lodged on an annual basis (some 20,000). There is therefore no argument to support the contention that the introduction of the costs rules has led to a proliferation of environmental litigation that must be stemmed.

Furthermore, between April 2013 and March 2015, nearly half (an average of 48%) of environmental cases were granted permission to proceed. This contrasts with a figure of 16% for all other JRs in 2014 and 7% in the first quarter of 2015.

Between April 2013 and March 2015, on average, 24% of environmental cases were successful for the claimant. This contrasts with a success rate of 2% for all cases in 2014. Thus, while environmental cases represent a very small proportion of the total number of cases lodged annually, they have high success rates when compared to JRs as a whole.

Environmental cases therefore play an essential role in upholding the rule of law and protecting the environment.

Link believes that, ironically, the corollary of these proposals could be a move away from a situation in which fixed costs caused few delays to one in which satellite litigation (which in itself can be prohibitively expensive) is once again the norm – which would undoubtedly be a cause of great frustration to public bodies and interested parties as well as claimants.

It is urging the government to withdraw what it sees as unwarranted and damaging proposals in order to avoid yet more prolonged judicial and administrative scrutiny at domestic, European and international levels.

Carol Day is a consultant solicitor at Leigh Day

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