Costs protection regime for environmental JRs likely in December 2012

A new regime of costs protection for litigants in environmental judicial review claims is expected to come into force in December 2012, the Government has announced.

In its response to the consultation on proposals for implementing the UK’s obligations under the Aarhus Convention, the Ministry of Justice said a fixed recoverable costs regime would apply “in all cases where the claimant states in the claim form that the case is an Aarhus case and the reasons why this is so, subject only to the court determining that the case is in fact not an Aarhus case at all”.

In a change from the initial proposals, and after concerns were expressed by NGOs, application of the regime will not be dependent on permission having been granted.

Under the revised proposals, the recoverable costs will be fixed as follows:

• The liability of the claimant to pay costs of the defendant will be capped at £5,000 if the claimant is an individual and at £10,000 where the claimant is an organisation; and
• The liability of the defendant to pay the costs of the claimant will be capped at £35,000.

The fixed recoverable costs for both the claimant and the defendant cannot be challenged (another change from the original proposals, which envisaged allowing challenges to the cap by defendants in exceptional cases). However, the fixed costs regime will not apply if the claim is not within the scope of the Convention.

The MoJ added that the rule proposed by Lord Justice Jackson for appeals for cases that have been heard under a fixed costs regime would also apply for appeals in cases brought under the Aarhus costs regime.

The Government said it would be putting proposals to the Civil Procedure Rule Committee for consideration “at the earliest opportunity”, with the intention that, if possible, the rules should be included in the body of rule amendments planned for making in December 2012.

The response said the Government intended to review the impact and application of the changes on a regular basis.

The Government said it recognised that there were some concerns about costs in statutory procedures of various kinds (including some statutory appeal and statutory review procedures).

“However, further work is needed to identify whether and, if so, how and to what extent these procedures fall within the scope of the Convention and to identify whether the [proposed] approach is the appropriate way forward and, if so, what the impacts might be (having regard, for example, to the fact that the permission filter of judicial review is absent in such cases, and that they may involve appeals by developers as well as members of the public or NGOs),” it said.

The Government added that the issues surrounding what application the Convention might have in private law cases in particular were “potentially more complex, since (as Lord Justice Jackson indicated in his review) costs protection for one party would potentially have a serious impact on the other party, who might well have very limited resources also”.

It said it would look into these issues and, where necessary, bring forward proposals separately, so as not to delay establishment of the scheme for judicial review cases.

The Aarhus Convention requires parties to guarantee rights of access to information, public participation in decision-making and access to justice in environmental matters.

In particular, it requires parties – such as the UK and the EU – to ensure the public have access to a procedure to challenge decisions subject to the public participation procedures and contraventions of national law relating to the environment.

The Convention also specifies that those court procedures should not be “prohibitively expensive”. 

Philip Hoult