One of the main aims behind the Aarhus Convention is to ensure that the public can bring litigation to protect the environment, in circumstances where the environment plainly cannot protect itself, without the uncertainty of the financial implications involved in doing so.
Part 45 of the CPR previously provided that judicial review claimants were entitled to limit their potential adverse costs liability to Defendants in cases concerning environmental matters. The costs that a Court could order an unsuccessful Claimant to pay were capped at £5,000 for individuals and £10,000 for organisations. Defendants’ liability for claimants’ costs were capped at £35,000.
On 17th September 2015, the MOJ issued a consultation paper on proposed changes to CPR part 45. These changes were implemented on 28th February 2017; despite opposition from most of the respondents to its consultation. The updated rules now extend in scope to cover statutory review environmental claims. However, the remainder of the changes do not extend the costs protection element of the convention; instead they seek to reduce the protection previously afforded to claimants. This has been introduced via CPR part 45.44 (1) which states that:
“The court may vary the amounts in rule 45.43 or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim”.
The wide discretion of the Court to remove or vary the level of cost capping at any time in the proceedings is likely to deter many claimants from pursuing cases concerning environmental issues. Surely, bringing a case in the public interest shouldn’t come at an uncertain cost to the individual/organisation doing so.
All this comes at a time when the government is, conversely, looking to extend a fixed costs regime to all other cases up to £25,000 (and possibly beyond) and on the back of the introduction of Costs Budgeting and Qualified One-way Costs Shifting; all under the banner of managing costs to provide greater access to Justice. Why then does this latest change appear to be a move in the wrong direction?
A number of environmental charities have launched legal proceedings against Lord Chancellor Liz Truss over the new rules. They claim that the ability of the Court to vary/remove the cap at any time is unlawful…watch this space!