October 13th, 2017
Costs Assurance Provided By Secretary Of State For Justice
Liverpool Green Party (LGP) has been offered a glimmer of hope in its quest for environmental justice.
With the support of the Environmental Law Foundation (ELF) and Counsel, Charles Streeten of FTB, LGP is applying to intervene in the legal challenge to the Ministry of Justice’s (MOJ) changes to the costs rules in environmental cases being brought by RSPB, FOE and ClientEarth.
ELF wrote to the MOJ for an assurance in advance of making the application that there would be no order for costs against LGP. The rule changes had last month prevented LGP challenging planning permission for a multi-storey car park with no consideration of air quality impacts.
Today (Friday 28th April 2017) we learnt that the MOJ has agreed that it will not seek to recover costs against LGP for such an intervention. This clears the way for the LGP to press ahead with an application to intervene. Without this assurance, LGP would have been unable to do so.
Government changes brought in via the Criminal Justice and Courts Act 2015 section 87 mean that intervenors in challenges now face the risk of costs awards against them. ELF considers that LGP has important information relevant to the MOJ challenge to present before a judge, and they now have an opportunity to do so.
In the earlier case, LGP was unable to challenge a decision taken by Liverpool City Council (LCC) to approve a 333-space multi storey car park in an Air Quality Management Area (AQMA), without undertaking an air quality assessment.
Whilst LGP had good grounds to challenge the decision, as an unincorporated association, LGP would only be able to take legal action through someone acting on its behalf. The new rule 8(5) of the Civil Procedure (Amendment) Rules 2017 SI No 95 remove the certainty of a costs cap for a claimant in the event of losing and enabled LCC to require disclosure of the financial resources of any claimant. In the circumstances, LGP was unable to find an individual willing to take on such a high level of risk and exposure.
Emma Montlake of the Environmental Law Foundation said:
“We think we have important evidence to present to the court, demonstrating the “chilling effect” of the new costs rules, on community’s ability to challenge bad environmental decisions and hope now that we will be given leave to do so”
The application by Mr Thomas Crone on behalf of the Liverpool Green Party to intervene was refused by Mr Justice Holgate on the 8th June 2017.
In refusing permission the judge said “I agree with the Defendant that it is inappropriate to grant permission to Mr Crone to intervene, in particular to argue points of law which fall outside the scope of the grounds for which permission has been granted to the Claimant”.
This exposes a difficulty in that unless an applicant to intervene raises a separate point of law they are at risk of costs under the Criminal Justice and Courts Act 2015. However, the claimants in the judicial review were given permission to rely on Mr Crone’s witness statement where it related to their existing grounds of challenge.
This was a very disappointing outcome for all concerned as we had all put a lot of work into this, especially Charles Streeten of FTB, who had acted entirely pro-bono.