MoJ consults on costs protection scheme for environmental JR claims

The Ministry of Justice has launched a long-awaited consultation on cost protection for litigants in environmental judicial review claims.

The government’s proposals are intended to implement the UK’s obligations under the Aarhus Convention and the Public Participation Directive.

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 specifies that court procedures should not be “prohibitively expensive”.

According to the consultation paper, the government “has accepted for some time that it would be in the interests of applicants in environmental judicial review cases to provide greater clarity about the level of costs through a codification of the rules on PCOs (protective costs orders) which set out the circumstances in which a PCO will be granted and the level at which it will be made”.

It added: “The proposals are designed to establish the basic principles for rules setting out the nature and content of a PCO in a ‘standard’ case and how far, and in what circumstances it will be possible to depart from the ‘standard case’.”

The consultation paper summarises the main proposals as follows:

• The rules would apply to judicial review cases falling under the Aarhus Convention, including those matters covered by the Directive. The rules would apply in relation to all claimants in the same way, regardless of whether the claimant in a particular case is a natural or legal person
• A PCO would be obtained by making an application. However, the application would not need to be supported by grounds and evidence unless an order other than the “default order” is sought
• A PCO would only be granted if permission to apply for judicial review is granted
• Applications should normally be made at the same time as the application for permission/in the claim form. It would be decided on by the court when it considers whether to grant permission, and would normally be considered on the papers
• The PCO would limit the liability of the claimant to pay the defendant’s costs to £5,000 and also limit the liability of the defendant to pay the claimant’s costs to £30,000
• By way of exception the defendant may apply for the cap to be removed – i.e. that there should be no costs capping because the claimant is not in need of costs protection – where information on the claimant’s resources is publicly available. Consultees will be asked for their views on the possibility of allowing the cap to be raised as well as removed. An application to remove the cap would only be on the basis that the claimant has such resources available for litigation that access to justice is not in issue and no costs protection is required. This would have to be supported by such evidence as is publicly available, as the applicant will not be able to require the claimant to disclose his or her means
• Costs of the PCO application would not be payable by either party if the PCO is applied for with default terms and is made in those terms (that is to say, there should be no additional costs element for a “default” application and order).

The consultation asks for views about the proposed limit and the appropriate level of the cross-cap. It also seeks opinion about the circumstances in which it might be appropriate to depart from the cap and whether it should be capable of being raised as well as lowered.

The closing date is 18 January 2012. The consultation paper, which relates to England and Wales, can be downloaded here. http://www.justice.gov.uk/consultations/cost-protection-litigants.htm