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Environmental NGOs win judicial review over Aarhus costs cap rules

Three non-governmental organisations (NGOs) have largely succeeded in a judicial review application against the UK government over variations to the rules capping costs in environmental cases.20 Sep 2017

The Royal Society for the Protection of Birds (RSPB), Friends of the Earth and ClientEarth brought the case against the Ministry of Justice (MoJ) after an amendment to rules governing the costs of environmental claims.

Such claims are governed by the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which was implemented in the EU by the Public Participation Directive and requires public bodies to ensure that the public have access to a procedure to challenge decisions relating to the environment to the extent permitted by national law. Amongst other things, the Convention says that this procedure should not be "prohibitively expensive".

In the UK parties' cost liabilities for losing claimants in Aarhus cases were capped to £5,000 for individuals and £10,000 for companies, with a £35,000 cap on costs recoverable from a losing defendant.

In February this year the UK government amended the Civil Procedure Rules (CPR) to allow courts to vary or remove the limits on the maximum costs liability of any party in an Aarhus Convention claim subject to new conditions.

The NGOs challenged the amendments, saying a variation of the costs limit breached EU law. They also argued that the amendments failed to provide for private hearings when a claimant or supporter's financial details could be discussed. Finally the NGOs sought a declaration that a claimant's own costs of bringing a case should be included in the assessment of its financial resources.

The High Court said (36 page / 2.5MB PDF) the variations permitted by the February reforms did not breach EU law – but said other UK rules on when an application to vary the cost cap had to be made would need to apply. These rules meant that the latest reforms to vary costs of cases brought under the Aarhus Convention would only be permissible in very limited circumstances.

The court agreed with the NGOs that hearings over whether or not there should be a variation in the cost cap should be heard in private, in order to protect confidential information relating to financial matters.

The MoJ accepted the validity of the third point of claim, but the court said it was not necessary for relief in the form of a declaration to be granted. In the future, the courts will have to take account of a claimant's costs to determine whether proceedings are “prohibitively expensive” in order to guide decisions over cost cap variations.