Clarifying The New Environmental Costs Rules?

By Ewa Krzepisz

Emma Lui reflects on the recent court challenge to the costs rules in environmental cases.

Last month the High Court handed down its decision on the application of the new costs protection rules in environmental cases (also known as ‘Aarhus claims’) introduced in February 2017 (RSPB and others v Secretary of State for Justice and another [2017] EWHC 2309 (Admin)). The new provisions require claimants to file a schedule of financial resources, including details of any financial support from others, with their claim forms, and allow courts to vary the previously fixed legal costs cap in light of information in that schedule.

Environmental NGOs (including the RSPB, Friends of the Earth and ClientEarth) challenged the changes, citing variation to the costs cap creating uncertainty, lack of provision for private hearings when examining a claimant’s financial resources, and that a claimant’s legal costs in bringing a claim should be included in assessing whether the proceedings are ‘prohibitively expensive’. In real terms, these changes could disincentivise potential claimants pursuing Aarhus claims.

The High Court rejected the first ground but ruled that if a hearing is required over a costs caps dispute (rather than on the papers), it will be private. This ensures Aarhus claimants will know their potential costs liability at an early stage in the proceedings and that their financial information remains confidential.

It is a welcome clarification, as the costs cap is unlikely to change without demonstrating that a claimant submitted false financial information or that their circumstances have materially changed. The third ground was conceded, meaning a claimant’s legal fees should be taken into consideration when setting the costs cap.

However, the court noted the rules needed to be clearer about what specific financial information claimants are obliged to provide in their schedules.