Environmental judicial review claims - reform of protective costs orders

The Aarhus Convention has three limbs as follows:

·            the right to access environmental information held by public authorities;

·            the right to participate in environmental decision making; and

·            the right to challenge breaches of the first limbs.

Article 9(4) thereof states that as part of the access to justice requirement, review procedures to allow the public to challenge refusals to provide environmental information; the legality of decisions, acts or omissions subject to the public participation rights; and acts or omissions which breach national environmental laws, must be "fair, equitable, timely and not prohibitively expensive". 

In 2010 the Aarhus Convention Compliance Committee found that the UK was in breach of its obligations under Article 9(4) with respect to the judicial review costs rules in England and Wales (see Port of Tyne Complaint ACCC/C/2008/33).

The case involved a challenge to a government licence concerning the port and disposal of contaminated dredgings which it was said was prevented by the costs system. In upholding the complaint, the Compliance Committee concluded that the discretion of the courts in determining costs had led to significant uncertainty. In addition it also found that the current system did not give the public interest of environmental claims in and of itself sufficient consideration.

The ordinary costs rule under the CPR is that the unsuccessful party will pay the costs of the successful party, although the court may vary this at its discretion (CPR 44.3).

Protective Cost Orders (PCOs) are orders generally made at an early stage of judicial review proceedings which state that an unsuccessful claimant will either not be required to pay the costs of the defendant, or will only have to pay up to a maximum amount. This provides some costs certainty to claimants who might otherwise be deterred from bringing a judicial review claim.

Criteria for the issue of PCOs were laid down in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192.

These criteria provide that a PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:

·            the issues raised are of general public importance;

·            the public interest requires that those issues should be resolved;

·            the claimant has no private interest in the outcome of the case;

·            having regard to the financial resources of the claimant and the defendant(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; and

·            if the order is not made the claimant will probably discontinue the proceedings and will be acting reasonably in so doing.

If those acting for the claimant are doing so pro bono, this will be likely to enhance the merits of the application for a PCO. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above. The court stated that a PCO will only be granted in the most exceptional of circumstances. The granting of PCOs, the conditions attached to them and the level of the costs cap is entirely at the discretion of the court.

The Court of Appeal has modified the criteria for PCOs in planning cases involving points of EU environmental impact assessment law (see R (on the application of Garner) v Elmbridge Borough Council in respect of general public interest requiring an effective review process in environmental cases) and the courts are alive to exploitation of that e.g. R (on the application of Young) v Oxford City Council [2012] EWCA Civ 46 where Richards LJ held that even though the case could broadly be termed an environmental case it did not engage directly effective provisions of EU law.

In October 2011, the Ministry of Justice consulted on a costs capping scheme for cases falling within the Convention. As a result of the consultation, the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) were made on 31 January 2013. The rules came into force on the 1 April 2013, and provide for new CPR 45.41 – 45.44.

Under the new rules:

·            Claimants in cases that fall within the Convention will automatically have their liability for the defendant's costs capped at £5,000 if they are an individual and £10,000 if they are an organisation;

·            Defendants will have their liability to pay claimant's costs capped at £35,000;

·            Costs protection will apply from the time that the claim is issued;

·            Defendants may challenge whether the claim falls within the Convention; and

·            There is no mechanism for challenging the level of the costs caps in a Convention claim.

Given the greater costs certainty provided it may be that more judicial review claims are brought on grounds falling within the scope of the Convention which may impact on a wide range of construction, infrastructure and energy projects although claimants will still bear the risk relating to their own costs.

There are of course additional proposals consulted upon and awaiting Coalition response relating to a reduction in the time limit for bringing a planning judicial review down to six weeks. In addition, measures to ‘head off’ hopeless cases are, according to the Daily Telegraph, under consideration and may involve claimants paying defendant’s initial costs up to acceptance of the claim by the court.