Access to (environmental) justice
Recent decisions of the Court of Appeal and the Aarhus Convention Compliance Committee will make it much easier for claimants to obtain costs protection in certain environmental cases, writes Cain Ormondroyd. Pressure is also building for a wider reform of costs rules to facilitate access to justice.
Key points
- Challenges to planning decisions involving Environmental Impact Assessment and Integrated Pollution Prevention and Control will now benefit from Protective Costs Orders (“PCO”) much more easily and frequently
- A claimant will not have to show a general public interest, and the financial elements of the test for the granting of a PCO will have to be looked at partly on an ‘objective’ basis, i.e. whether the costs involved would deter an ordinary member of the public
- Defendants will continue to be able to rely on obtaining a reciprocal cap on the Claimant’s cost recovery on a case by case basis
- A committee of the UN, applying a convention which the UK has signed up to, has ruled that the UK’s costs rules in environmental cases are “prohibitively expensive”. This may add to pressure for a complete reform of the costs system in all public law cases.
Garner v Elmbridge Borough Council [2010] EWCA Civ 1006
This case involved a challenge to a planning permission for development on the banks of the Thames, which had been subject to Environmental Impact Assessment.
The claimant applied for a Protective Costs Order and this was refused on the principles set out in Corner House – R (Corner House Research) v SSTI [2005] 1 WLR 2600 – and later cases.
These required the applicant to show the following:
- the issues raised are of general public importance
- the public interest requires that those issues should be resolved
- the applicant has no private interest in the outcome of the case
- having regard to the financial resources of the applicant and the respondent(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 applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
However, the Court of Appeal (Sullivan LJ giving the leading judgment) held that article 10a of the EIA Directive (83/337/EEC) applied and changed the position. This incorporates requirements drawn from the Aarhus Convention (see below) of access to justice that must not be “prohibitively expensive”. The IPPC Directive (96/61/EC) contains similar provisions.
Sullivan LJ upheld the appeal, holding that the Corner House principles should be modified in EIA and IPPC cases: “I accept the appellant's submission that in an Article 10a case there is no justification for the application of the issues of 'general public importance'/ 'public interest requiring resolution of those issues' in the Corner House conditions.”
The second issue was how to decide whether costs were ‘prohibitively expensive’ or not. Some degree of investigation of a claimant’s means would still be allowed, but: “The more intrusive the investigation into the means of those who seek PCOs and the more detail that is required of them, the more likely it is that there will be a chilling effect on the willingness of ordinary members of the public (who need the protection that a PCO would afford) to challenge the lawfulness of environmental decisions.”
Some reciprocal limit (i.e. on recovery of costs by the claimant) was not inconsistent with article 10a. It should be applied on a case by case basis.
The court felt that the case raised broader systemic issues about the costs regime which it could not decide, and referred to several more appropriate forums in which such issues were being considered (see later).
Aarhus Compliance Committee
The ‘Aarhus Convention’ (UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) has been ratified by the UK. There is a Compliance Committee which members of the public can complain to if the UK is not living up to its obligations under the Convention.
This committee has recently issued rulings on two cases, finding breaches in both cases. In both the costs rules, in particular the ‘loser pays’ principle, were found to be “prohibitively expensive” and therefore contrary to the Convention.
The rulings are not binding, although they will put pressure on the government which has previously claimed that the rules do comply with Aarhus. As the Convention has not been incorporated into domestic law it has a status broadly similar to that accorded to the European Convention on Human Rights before the Human Rights Act 1998.
Broader pressure for reform
Garner leaves the law in a strange situation, as different PCO rules now apply to EIA and IPPC cases as opposed to all other environmental and other public law cases. This may increase pressure to reform the whole costs system so that it is no longer open to the criticism that it is “prohibitively expensive”.
The government is currently deciding whether to implement the recommendations of Lord Justice Jackson, who recommended earlier this year that there should be a change to a system of ‘qualified one way costs shifting’ in public law cases, i.e. the normal rule should be that the claimant would not have to pay the defendant’s costs, subject to an assessment of his means. Applying this across the board would hopefully achieve compliance with the Aarhus Convention and secure consistency between different types of cases.
The European Commission and the Supreme Court are also currently looking at these issues so there may well be further developments soon.
Cain Ormondroyd is a barrister at Francis Taylor Building (www.ftb.eu.com). He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
