CPRE raises concerns about government plans to raise cost of legal challenges, on projects like a new runway
The CPRE (Campaign to Protect Rural England) fears proposals to expose claimants in environmental cases, such as big infrastructure projects, to higher financial liabilities if they lose their cases could deter people from bringing actions. Green organisations could face steep rises in the cost of legal challenges to Heathrow’s expansion, or air quality policies, under reforms that the government is contemplating. But the Ministry of Justice denies proposals for higher cost caps are timed to coincide with HS2 and Heathrow. Campaigners fear government plans will deter people from bringing actions. There is a current consultation to update the UK’s responsibilities under the Aarhus convention, which guarantees public participation in decision-making as well as access to information and justice in environmental matters. The Prime Minister has been critical of delays to building projects, due to lengthy judicial review cases. This is claimed to delay economic development. Ralph Smyth, a barrister and the transport campaign manager at CPRE, said the planned changes could make it harder to challenge environmental decisions in the courts, and get justice for individuals, community groups and charities seeking to protect air quality, green belt, tranquillity and the climate.
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Green activists worry about government plans to raise cost of legal challenges
Ministry of Justice denies proposals for higher cost caps are timed to coincide with HS2 and Heathrow expansion. Campaigners fear government plans will deter people from bringing actions over upcoming infrastructure projects.
By Owen Bowcott – Legal affairs correspondent
Monday 28 September 2015 (Guardian)
Green organisations could face steep rises in the cost of legal challenges to Heathrow’s expansion, or air quality policies, under reforms the government is contemplating.
Proposals to expose claimants in environmental cases to higher financial liabilities if they lose their cases could deter people from bringing actions, according to the Campaign to Protect Rural England (CPRE).
The consultation has been launched to update the UK’s responsibilities under the Aarhus convention, which guarantees public participation in decision-making as well as access to information and justice in environmental matters.
But green activists fear the plans, which introduce higher cost caps, coincide with the next stage of major infrastructure projects such as expanding Heathrow to a third runway and the HS2 rail lines linking the north of England and London.
In the past, the prime minister has blamed judicial review cases for delaying economic development. In 2012, David Cameron told the CBI: “We urgently need to get a grip on this. So here’s what we’re going to do: reduce the time limit when people can bring cases, charge more for [judicial] reviews so people think twice about time-wasting, and instead of giving hopeless cases up to four bites of the cherry to appeal, we will halve that to two.”
Ralph Smyth, a barrister and the transport campaign manager at the CPRE, said: “In the run-up to its decision on Heathrow expansion, the government is cynically seeking to make it harder to challenge environmental decisions in the courts.
“What it is spinning as merely ‘measured adjustments’ would in fact impact hugely on the affordability of British justice for individuals, community groups and charities seeking to protect air quality, green belt, tranquillity and the climate.
“With legal costs in England among the highest in Europe, the current system of costs protection brings much needed certainty for those bringing environmental cases.
“Because of the complexity of judicial review, few cases are brought. While the proposals would save negligible costs, they would introduce significant uncertainty about how much a losing party would have to pay, putting the public off seeking justice in the first place.”
Campaigners are worried about consultation proposals to double the caps from £5,000 to £10,000 for individuals and from £10,000 to £20,000 for organisations such as environmental groups – exposing them to higher costs if they lost their cases.
They also allege the MoJ plans contemplate making the higher liabilities apply to each claimant rather than each case, potentially multiplying costs in challenges brought by multiple parties. The department says this is a misunderstanding of the proposals and the cap will still apply to each overall case if bought collectively rather than being applied to every claimant.
It also denies the timing of the consultation has anything to do with Heathrow or other imminent infrastructure projects. A Ministry of Justice spokesperson said: “The proposed changes to the rules around legal costs in environmental cases are designed to make sure challenges can be still be brought without encouraging meritless claims, which cause unreasonable costs and delays.”
http://www.theguardian.com/environment/2015/sep/28/green-legal-challenges-heathrow-hs2-cost-caps
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The consultation ends on 10th December 2015
It can be found at
Costs Protection in Environmental Claims Proposals to revise the costs capping scheme for eligible environmental challenges
It is somewhat legalistic document, and not easy reading for the layperson.
The questions the consultation asks are:
Q1. Do you agree with the revised definition proposed for an ‘Aarhus Convention claim’. If not how do you think it should be defined? Please give your reasons.
Q2. Do you agree with the proposed changes to the wording of the rules and Practice Directions regarding eligibility for costs protection? If not, please give your reasons.
Q3. Should claimants only be granted costs protection under the Environmental Costs Protection Regime once permission to apply for judicial review or statutory review (where relevant) has been given? If not, then please give your reasons.
Q4. Do you agree with the proposal to introduce a ‘hybrid’ approach to govern the level of the costs caps? If not, please give your reasons.
Q5. Do you agree that the criteria set out at proposed rule 45.44(4) at Annex A properly reflect the principles from the Edwards cases? If not, please give your reasons.
Q6. Do you agree that it is appropriate for the courts to apply the Edwards principles (proposed rule 45.44 at Annex A) to decide whether to vary costs caps? If not, please give your reasons.
Q7. Should all claimants be required to file at court and serve on the defendant a schedule of their financial resources at the commencement of proceedings? If not, please give your reasons.
Q8. Do you agree with the proposed approach to the application of costs caps in claims involving multiple claimants or defendants? If not please give your reasons.
Q9. At what level should the default costs caps be set? Please give your reasons.
Q10. What are your views on the introduction of a range of default costs caps in the future?
Q11. Do you agree that where a defendant unsuccessfully challenges whether a claim is an Aarhus Convention claim, costs of that challenge should normally be ordered on the standard basis? If not please give your reasons.
Q12. Do you think the Environmental Costs Protection Regime should make specific provision for how the courts should normally deal with the costs of applications to vary costs caps? If so, what approach should the rules take?
Q13. Do you have any comments on the proposed revisions to Practice Direction 25A?
Q14. Are there other types of challenge to which the Environmental Costs Protection Regime should be extended and if so what are they and why?
Q15. From your experience are there any groups of individuals with protected characteristics who may be particularly affected, either positively or negatively, by the proposals to revise the Environmental Costs Protection Regime?