Green groups welcome proposals to allow greater access to environmental justice

14.1.2010     (Friends of the   Earth press release)
Leading environmental campaign groups have today welcomed proposals by Lord Justice
Jackson for changes to the legal system to improve access to justice in environmental
protection cases [1] and have called on the Government to act urgently to make
the necessary changes to the costs rules.
The Coalition for Access to Justice for the Environment (CAJE) [2], will now
write to the Government urging it to act swiftly to take forward recommendations
in the review of legal costs.
Environmentalists have long argued that current court rules make access to justice
unaffordable for people and groups who want to use the law to protect the environment
Current rules mean that environmental campaigners who take their case to the
Courts can expect to be ordered to pay tens of thousands of pounds to the other
side – usually the Government – if they lose.
The Jackson Report highlights the importance of environmental laws but concludes
that all judicial review cases should be given the same protection.   The Report
recommends that claimants in all judicial review cases should not normally be
at risk of having to pay the other side’s costs [4].
Carol Hatton, solicitor at WWF-UK said:
“We welcome many of the findings in the report and call on Ministers to take
urgent action to change the costs rules.   If the Government refuses to act on
these recommendations it may find itself called to account in the European Court
of Justice.”
Phil Michaels, Head of Legal at Friends of the Earth said:
“The Government has known for years that the present costs system was preventing
access to justice.   The Jackson Report advocates a solution to part of the problem.
There is no longer any excuse for inaction – a fairer system must be introduced
as quickly as possible.”
European Commission research [5] has shown that the UK has one of the worst cost
regimes for access to justice in environmental matters, and that the current costs
rules represent a “significant obstacle to access to justice in the United Kingdom”.
As a result of a complaint lodged by CAJE in 2005, the European Commission is
currently considering taking legal proceedings against the UK on the basis that
legal action is prohibitively expensive for most individuals and organisations.
A committee of the United Nations is also currently considering a number of complaints
against the UK because the nature of its court cost rules means that the UK cannot
comply with its international obligations to ensure that access to justice in
environmental matters is “not prohibitively expensive.” [6].

Notes to Editors

1.     The recommendations come in the report of Lord Justice Jackson into Civil
Litigation Costs.   The report was commissioned by Sir Anthony Clarke, the Master
of the Rolls.
2.     CAJE includes WWF UK, Friends of the Earth, Greenpeace, RSPB, the Environmental
Law Foundation and Capacity Global.
3.     See (a) “Environmental Justice” (2004) published by the Environmental Justice
Project (WWF-UK, ELF and Leigh, Day & Co Solicitors), (b) “Civil Law Aspects
of Environmental Justice” (2003) published by ELF and (c) “Using the Law: Barriers
and Opportunities for Environmental Justice” (2003) published by Capacity Global
available at:



4.     This is referred to in the report as ‘qualified one way costs shifting’.
5.     In 2007, the European Commission commissioned research on access to environmental
justice in 25 Member States.   The UK was ranked amongst the bottom five Member
States (along with Austria, Germany, Hungary and Malta), largely on the basis
of its rules on costs.   The UK Report can be found at:
6.     The UNECE Aahus Convention seeks to ensure a minimum standard with regard
to access to environmental information, public participation in decision-making
and access to justice in environmental matters.   The Aarhus Convention Compliance
Committee is currently examining two complaints against the UK on the basis that
environmental litigation in the UK is “prohibitively expensive”. CAJE submitted
an “amicus intervention” to the Committee in relation to both complaints and gave
oral evidence in July and September 2009.   The Compliance Committee is due to
publish its findings in relation to these complaints in April 2010.



A couple of little bits from the reports below:

Environmental action
The Project defined an environmental action as one relating to the direct
and indirect effects on human beings, fauna, flora, cultural sites and built
structures, soil, water, air atmosphere, climate, the land, landscape, natural
sites, biological diversity, energy, noise, radiation, waste, material assets
and the cultural heritage. Statutes included within the scope of the EJP are
listed in Appendix 8.
Understanding of environmental issues
Nearly two thirds of respondents (66%) do not think the Courts’ understand
environmental issues, and 44% of respondents recommend environmental
training for the judiciary. However, there is an important distinction to be
made between different types of civil claim. Private claims relating to property
damage and nuisance appear to fare reasonably well if they get to court, but
private law claims concerning environment/personal injury and public law
claims appear to experience a more fundamental challenge in the form of
an inherent discrimination within the judiciary. This may be because these
claims often concern wider issues, affect large numbers of people (hence
raising concerns about floodgates), or require the judiciary to take a bold or
expansive approach.
Limited scope of judicial review
Although not questioned directly about this issue, over a quarter of respondents
(26%) raised the limited scope of JR as a barrier to environmental justice.