Fears that protecting environment in the courts will become prohibitively expensive, as ‘cost cap’ scrapped
Date added: February 28, 2017
New rules came into force today which could dramatically reduce the ability of individuals and non-governmental organisations to bring legal challenges to protect the environment. The government is scrapping automatic “cost caps” which limit the costs of losing a case in England and Wales. We have the current cost caps due to the international Aarhus Convention, which was ratified by the government in 2005. Opponents claim the changes will make it “impossible” to “hold the government to account”. The government says people will not be expected to pay above their means, but they could still be virtually bankrupted, if they lose the case, having to sell their house. The normal “loser pays rule” means that successful claimants can claim their legal costs back from the defendant. The caps on costs (started in 2013) if you lose the case currently stand at £5,000 for an individual and £10,000 for an organisation. The change would mean the loser having to pay both their own legal costs, and those of the winner. ClientEarth, Friends of the Earth and the RSPB are challenging the rule change in the courts, arguing those bringing such cases would be exposed to huge and uncertain financial risk. The Aarhus Convention requires legal action to protect the environment not to be “prohibitively expensive”. It is particularly a concern due to Brexit.
Fears for environment as automatic legal ‘cost cap’ scrapped
By Clive Coleman, Legal correspondent, BBC News
New rules have come into force which could dramatically reduce the ability of individuals and non-governmental organisations to bring legal challenges to protect the environment.
The government is scrapping automatic “cost caps” which limit the costs of losing a case in England and Wales.
Opponents claim the changes will make it “impossible” to “hold the government to account”.
But the government says people will not be expected to pay above their means.
The caps currently stand at £5,000 for an individual and £10,000 for an organisation.
The normal “loser pays rule” means that successful claimants can claim their legal costs back from the defendant.
But if they lose, they have to pay both their own legal costs, and those of the winning side.
Under the changes, any person or organisation wanting to bring a judicial review in environmental cases will not automatically receive the protection of a ‘”cost cap” if they lose.
That could mean individuals having to sell a house.
ClientEarth, Friends of the Earth and the RSPB are challenging the rule change in the courts, arguing those bringing such cases would be exposed to huge and uncertain financial risk.
It requires contracting parties to ensure that legal action to protect the environment is “fair, equitable, timely and not prohibitively expensive”.
This recognises that the environment cannot protect itself and that there is a public interest in people and groups bringing legal actions to protect it.
Before the caps, the cost of bringing cases could be huge.
In one, concerning the construction of a funicular railway up Cairngorm Mountain in Scotland, WWF was ordered to pay the government’s legal costs of over £200,000 on losing.
In another, local resident Lilian Pallikaropoulos faced a costs bill of just under £90,000 after losing her challenge against the legality of a large cement works near her home in Rugby, Warwickshire.
Under the new rules, the court can look at the financial resources of a claimant and discard the automatic cost cap.
This could involve an assessment of how much their house is worth and whether they should be forced to sell it if they lose.
It is estimated that some 40,000 people in the UK die prematurely each year because of air pollution.
The group ClientEarth has brought successful legal challenges against the government’s failure to meet EU targets on air pollution.
Its chief executive James Thornton said: “By removing cost caps and allowing personal finances to be publicly examined, it creates a huge deterrent for those who would use law to defend people’s health and the natural world.
“With unlimited legal costs, it will be virtually impossible to bring a public interest case and hold the government to account.
“This is especially true after a hard Brexit – which looks increasingly likely – when the EU won’t be able to punish UK law breaking.”
Campaigners say the UK’s public interest cost rules are already more punitive than the US, China, and any other country in the EU.
They claim environmental public interest cases made up less than 1% of all judicial reviews from 2013 to 2015, and that they achieve twelve times the success rate of other judicial reviews.
A Ministry of Justice spokesman said: “The cost of bringing environmental challenges must not be prohibitively expensive and our changes will ensure that individuals are not expected to pay legal costs above their means. Legal aid remains available for these cases”.
But last week, a House of Lords committee concluded that “people with a genuine complaint will be discouraged from pursuing it in the courts”.
Government tries to puts itself above environmental law
By Oliver Tickell (Ecologist)
28th February 2017
The UK government hates to be held accountable in court when it breaks environmental laws like those on air quality. So it has created new rules – coming into force today – that expose environmental litigants to unlimited financial liabilities. Now three leading NGOs have gone to the High Court to argue that the rules themselves are in breach the UK’s international obligations.
Not only is this a huge disincentive to bringing a public interest environmental case. The groups also believe it breaches EU and international laws on access to justice to which the UK is Party.
New rules coming into force today will make it virtually impossible to bring a public interest case – like ClientEarth’s air pollution challenge – to protect the environment.
The new rules weaken financial protection for people or organisations bringing a case against the government, meaning they risk having to pay the government’s full, unlimited legal costs in return for going to court to protect the environment.
The current rules cap the costs that individuals, community groups and environmental groups have to pay on losing a case against a public body. These caps are currently £5,000 for individuals and £10,000 in all other cases.
But under the new rules, claimants will have to provide the court with information about their personal finances when applying for Judicial Review. Even if judges decide to set a ‘cap’, or upper limit, on the costs that litigants could be held liable for during the proceedings, they will be able to increase the cap at any stage.
The change in rules therefore makes it impossible for public interest litigants to know how much a case will cost from the start. Individual campaigners and charities could therefore find themselves facing costs of tens or even hundreds of thousands of pounds for a High Court action.
Costs would only increase if they were to appeal an unfavourable initial judgment to higher courts. Even a High Court win could prove disastrous: if it were to be appealed by the government, they might be unable to afford to defend it given the enormous potential costs of litigation in the Court of Appeal, and the Supreme Court.
The could then be forced to abandon their case, and be held liable for the government’s costs to date, even if they were actually winning the case up to that point.
Legal proceedings launched against ‘unlawful’ rules
In response ClientEarth, Friends of the Earth and the RSPB have applied in the High Court for a judicial review against the Lord Chancellor and Secretary of State for Justice to challenge what the organisations believe to be “unlawful” new costs rules for environmental cases.
The High Court will decide whether to grant permission to proceed with an application for JR in the coming months. In a joint statement, the three groups said:
“Charities and NGOs are the main way people can mount an effective challenge to government decisions. We represent lots of concerned individuals who have chosen to pool their resources with us so we can defend nature on their behalf. We are an alliance of thousands of individual citizens who would otherwise lack the means and resources to take an issue to court. Access to justice, on equal terms, is everyone’s right.”
Last week, the House of Lords statutory instruments committee, which reviewed the rules, concluded:
“Although the MoJ states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts.”
This finding supports the view of campaigners that government’s new rules will make it prohibitively difficult for individuals and environmental groups to bring environmental cases of wide public interest. This includes cases like ClientEarth’s challenge against the UK government over toxic air pollution.
Government violating international obligations
A UN committee charged with reviewing access to the court in the UK also criticised the new rules in a report released last Friday (24th February), saying the government “has not yet fulfilled the requirements” specified in an earlier decision as a signatory of the European ‘access to justice law’, the Aarhus Convention.
It also demands that the UK government, by 1st April 2017, report on “the outcomes of England and Wales cross-government review, together with any other actions it has by then taken, or proposes to take, to ensure that the allocation of costs in all court procedures … subject to article 9 is fair and equitable and not prohibitively expensive.”
This information can be used by the court or the defendant to argue that the costs cap can be increased – or even removed altogether – at any stage in the proceedings. “This makes it impossible for people to know how much a case will cost from the start and could force them to withdraw proceedings”, say the three groups, “but not before being exposed to very high costs.”
“Not only is this a huge disincentive to bringing a public interest environmental case. We also believe it breaches EU and international laws on access to justice to which the UK is Party.”
The post-Brexit situation is looking complex. The Aarhus Convention, to which the UK is signatory, is separate to the EU treaties from which Britain is to withdraw, and will continue to apply. However its enforcement mechanisms against miscreant states are weak.
Separate EU laws, enforceable through the European Court of Justice (ECJ), may become void post-Brexit if the domestic laws that reflect them are repealed. Even of they are not repealed, however, the ECJ will lose its final jurisdiction.
Oliver Tickell is contributing editor at the Ecologist.