Change in law afoot on costs capping in environmental claims


The High Court has stated the recent change in law for cases involving costs capping in environmental claims must be re-examined.

Mr Justice Dove ruled that rule 8(5) of the Civil Procedure (Amendment) Rules 2017/95, allowing caps on legal costs to be varied at any point during a case, rather than remaining fixed throughout, must be amended.

The previous costs protection regime was introduced in 2013. This capped costs for unsuccessful claimants at £5,000 for individuals and £10,000 for organisations. Defendants’ liability for Claimants’ costs are capped at £35,000.

In February of this year however, new rules were introduced which allowed judges to vary the costs cap in a case. A judicial review was then brought by the Royal Society for the Protection of Birds, Friends of the Earth and ClientEarth, which argued that Claimants faced no certainty as to legal costs, and arguably could face an unlimited liability if they were unsuccessful. The groups argued that the rules would prevent meritorious claims from being brought, which was against public policy and prevented access to justice.

The Court also ruled that the Ministry of Justice must change its rules to ensure that any hearing about costs protection limits takes place in private, avoiding the need for Claimants to show their financial means in open Court.