Costs – an uneven playing field

By Tom Brenan

Access to environmental justice must not be ‘prohibitively expensive’. That is a key requirement of the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (‘Aarhus Convention’) which the UK ratified in 2005. Various provisions have been implemented in the UK via European legislation (the EU is also a party). There have been a number of cases and complaints over recent years (a number of which ELF has been involved with) which have highlighted the UK’s failure to comply with this and other Aarhus Convention requirements.

In an effort to remedy this, the government introduced a series of changes to the court rules from April 2013, with the introduction of the Environmental Costs Protection Regime (ECPR). This limits the costs payable in Aarhus Convention cases by an individual unsuccessful claimant to a successful defendant to £5,000 (£10,000 in the case of an organisation).

Despite the low number of environmental judicial reviews each year, the government is concerned that ‘unmeritorious’ claims are causing delay and frustrating proper decision-making (although it has not produced evidence to substantiate these concerns).

Following rulings by the Court of Justice of the European Union and the UK Supreme Court, the government set out proposals in its most recent consultation, Costs Protection in Environmental Claims, which it considered would put its compliance with EU law beyond doubt. It has now published its response to the consultation.

One aspect of this was broadening the definition of an “Aarhus claim” (currently limited to judicial review) to include statutory review. However, as the focus was on changes that could be made within the EU law framework this will only be widened to include statutory reviews covered by EU provisions.

The government appears to acknowledge that the Aarhus Convention makes provision for much wider environmental challenges and refers to Secretary of State for Communities and Local Government v Venn (2014) in which the Court of Appeal stated that a costs regime where costs protection was based on the identity of the decision-maker was ‘systemically flawed’. However, the government wishes to continue to consider how best to address these cases. One could perhaps be forgiven for asking, how long will this take and what has it been doing for the past 11 months?

The fact that the government has chosen not to proceed with certain aspects of its proposals such as making costs protection dependent on obtaining permission for a challenge is welcome. However, despite an average of nearly 97% of the 289 responses received disagreeing with the proposals, the government intends to take the majority of them forward as soon as possible.

Much of ELF’s work in recent years has highlighted how costs in environmental cases are a huge barrier for many communities seeking to challenge what they consider to be poor environmental decision making. While limited, the advent of the ECPR was seen as a helpful start in improving access to environmental justice in that it allowed a degree of certainty for communities. However, the new proposals unravel some of this in that they will allow applications for variation of the costs cap (an increase in costs protection is likely to be ‘exceptional’), will require claimants to disclose financial information before a costs cap is varied, and will remove the requirement that costs paid by an unsuccessful defendant challenging whether a claim is an Aarhus Convention claim should be on the indemnity basis.

The government is concerned about levelling the playing field in that it sees the ECPR overly favouring claimants. Let’s consider the Aarhus Convention itself for a moment. The Preamble recognises “that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”.

It continues, “Considering that, to be able to assert this right and to observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights”.

The point is that citizens have a duty to act and the Aarhus Convention acknowledges that they may need help in doing so. It recognises the inequality of arms in access to environmental justice cases. Defendants in such cases are likely to have access to much greater resources than claimants. However, in seeking to protect the public purse (in that most defendants are likely to be public bodies), the changes proposed are also likely to act as a disincentive for communities seeking access to environmental justice.

The playing field looks more uneven than ever.