Government responds to consultation on adjusting costs protection for Aarhus Convention environmental claims

Practical Law UK Legal Update w-004-6250 (Approx. 6 pages)

Government responds to consultation on adjusting costs protection for Aarhus Convention environmental claims

by Practical Law Environment

Background: CCOs for Aarhus Convention claims

The Aarhus Convention requires its parties, which include the UK and the EU, to provide access to justice in environmental matters (United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters). In particular, Articles 9(2) and 9(3) require parties to ensure that the public have access to a procedure to challenge decisions subject to the public participation procedures of the Aarhus Convention and contraventions of national law relating to the environment. It also specifies that those court procedures should not be "prohibitively expensive".

In 2013, a codified regime for costs capping orders (CCOs) for "Aarhus Convention claims" was introduced for England and Wales under Civil Procedure Rules (CPR) 45.41 to 45.55, together with a related Practice Direction 45 (Section VII – Costs limits in Aarhus Convention claims). This is also sometimes referred to as the environmental costs protection regime (ECPR). An Aarhus Convention claim is currently defined as:

"A claim for judicial review of a decision, act or omission all or part of which is subject to the provisions of the [Aarhus Convention], including a claim which proceeds on the basis that the decision, act or omission, or part of it, is so subject."

In September 2015, the Ministry of Justice (MoJ) launched a consultation on its proposals to make measured adjustments to the CCO regime for Aarhus Convention claims. This was mainly in response to a succession of cases that challenged whether the pre-2013 CPR 45 costs protection for environmental legal challenges complied with the Aarhus Convention, in particular, whether it was prohibitively expensive as follows:

R (Edwards and another) v Environment Agency and others [2010] UKSC 57 and (No 2) [2013] UKSC 78.
European Commission v United Kingdom [2014] EUECJ C-530/11.

Importantly, the judgments also clarified that, in meeting the requirement not to be prohibitively expensive, the CCO regime under CPR 45 from 2013 for Aarhus Convention claims could be made significantly more flexible.

For more information on:

The MoJ's 2015 consultation, see Legal update: archive, Government consults on adjusting costs protection for Aarhus Convention environmental claims
Implementation of the Aarhus Convention principles concerning access to environmental justice under the CPR, see Practice note, Jackson civil litigation reforms: environmental implications: Protective costs orders (PCOs) and costs capping order (CCOs).
The Aarhus Convention and Edwards cases, see Practice note, Compliance Committee: Edwards case.

MoJ publishes government response to consultation on adjusting costs regime for Aarhus Convention claims

Consultation response

On 17 November 2016, the MoJ published the government response to its 2015 consultation on proposals for adjusting the CCO regime for Aarhus Convention claims (see Background: CCOs for Aarhus Convention claims above).

The changes the government proposes to make to the CCO regime for Aarhus Convention claims are as follows.

Extension of definition beyond judicial review to include other environmental reviews

The government will extend the definition of "Aarhus Convention claim" beyond environmental judicial review to include environmental reviews under statutes that are covered by EU law (engaging Article 9(2) of the Aarhus Convention ensuring an independent review). The government emphasises that the focus of this consultation was to consider the changes that could be made within the EU law framework.

While the response does not specifically refer to this, importantly, it should extend to applications under section 288 of the Town and Country Planning Act 1990 (TCPA 1990) questioning the validity of planning decisions.

The government will not:

Extend the CCO regime to cases relating to legislation that affects the environment more generally.
List the types of cases to which it applies because that risks inadvertently omitting a claim which should fall within its scope.
Extend the regime to private nuisance cases or to other types of cases that could be brought against private individuals. This is because the CCO regime was designed principally with public authority defendants in mind.

Hybrid costs capping regime

The government will move away from the fixed costs cap model, to allow both upwards and downwards variation. The current fixed costs cap model does not allow for costs caps to be varied to take account of what prohibitive expense means in an individual case. The flexibility will be safeguarded by applying the principles set out by the Court of Justice of the European Union (and reiterated by the Supreme Court) in Edwards v Environment Agency Case C-260/11 (Edwards principles). The Edwards principles are that the costs of proceedings must not subjectively prohibitively expensive (exceed the financial resources of the claimant) and must not appear objectively to be unreasonable, having regard to certain factors including the merits of the case.

The new model will:

Require the claimant to file financial information at the start of the proceedings.
Set default starting points for costs caps at the current fixed levels which would remain in place unless the court considered that they should be varied.
Clarify that, for cases involving multiple claimants or defendants, a separate costs cap should be applied to each individual party.
Provide a clear process for the courts to follow whenever they decide whether to vary a costs cap (which will ensure that they are not prohibitively expensive for the claimant).
Deter speculative applications to vary costs caps by placing the onus on the applicant to demonstrate the need for variation, making it exceptional for the court to grant more costs protection, and requiring the court to be satisfied that otherwise the claimant's costs would be prohibitively expensive and making unsuccessful applicants for variations pay the costs of that application.
Include the court fees in calculating the costs.

Appeals

The government will invite the:

Civil Procedure Rule Committee to amend the CPR to clarify when the Court of Appeal should award a claimant costs protection in an Aarhus Convention claim appeal to prevent the proceedings being prohibitively expensive for the claimant. Prohibitive expense should be assessed by applying the Edwards principles.
Supreme Court to clarify its own rules, which it makes.

Clarification of meaning of "member of the public"

The government will clarify what is meant by "member of the public" eligible under the CCO regime to ensure it is clear that it is aligned with the definition in the Aarhus Convention.

Whether CCOs should only be granted where permission to proceed granted

The government will not take forward its proposal that CCOs should only be made where permission to proceed with an Aarhus Convention claim is given. The original proposal was intended to bring it into line with the approach taken in non-environmental judicial review cases.

While it would be relatively rare for claimants to incur significant costs prior to permission, the government does accept that there are real concerns that the uncertainty around costs protection could have a deterrent effect on some claimants.

Cross-undertakings in damages

A cross-undertaking in damages is given by the claimant to pay damages subsequently due to the defendant or a third party if the interim injunction obtained by the claimant turns out not to have been justified.

The current Practice Direction 25A provides that, when the court considers whether to require an applicant in an Aarhus Convention claim to give a cross-undertaking in damages, it will have particular regard to the need for the terms of the order not to make continuing with the claim prohibitively expensive for the applicant.

The government will proceed with its consultation proposal of ensuring that Practice Direction 25A is clarified by setting out the factors that the court should consider, set out in the Edwards case principles, when considering of what would be prohibitively expensive for the claimant (see Background: CCOs for Aarhus Convention claims above).

Next steps

The government intends to put proposals to amend the CPR and Practice Directions to the Civil Procedure Rule Committee at the earliest opportunity and invite it to make rule changes as soon as possible.

The government intends to review the impact and application of these changes, and to consider whether to make any other changes. This is expected to be within 24 months of implementation when sufficient data should be available.

Comment

Concerning the government's proposals for the hybrid costs capping regime, which it will now implement, four respondents to the consultation agreed with the proposal and 230 respondents disagreed with it.

Jamie Beagent, a partner at Leigh Day, said:

"These proposals will create a climate of fear and uncertainty amongst those wishing to challenge projects imposed upon them and their environment. It will certainly make it harder for individuals to challenge projects of high public concern, including the new runway at Heathrow, the UK’s performance on air pollution, HS2 or the proposals for fracking across the UK."

(See Leigh Day press release, Lawyers accuse MoJ of undermining people s rights to challenge environmental projects, 17 November 2016.)

Sources

End of Document

Also Found In

Resource ID w-004-6250

Published on 21-Nov-2016

Resource Type Legal update: archive

Jurisdictions

England
Wales