New government rules could raise cost of legal challenges to fracking – lawyers

yorks-roseAs anti-fracking groups prepare to take legal action over recent shale gas decisions, the government has announced changes which could make future challenges more expensive.

Lawyers and campaigners have warned that new rules revealed by the Ministry of Justice on Thursday (17/11/2016) could deter people who oppose decisions which they believe will have a significant impact on the environment.

A case against the approval of fracking by North Yorkshire County Council, which goes to the High Court in London next week, will not be affected. Nor will challenges, announced yesterday, to decisions made by the Local Government Secretary on fracking in Lancashire.

But the law firm, Leigh Day, which represents two groups seeking a judicial review in the North Yorkshire case, has said the change will “create a climate of fear and uncertainty”.

The new rules have been opposed by the joint Green Party leader, Caroline Lucas, and  by Friends of the Earth,  one of the parties seeking a judicial review next week.



Current cap on costs

The UK is required under European law to make sure that the costs of bringing certain environmental challenges is not “prohibitively expensive”.

The current rules ensure that people who apply for a judicial review on an environmental decision know how much they will have to pay if they lose. Since 2013, the costs have been capped at £5,000 for an individual or £10,000 for a group.

But under the new rules, this cap on costs could be varied. Applicants for a judicial review will have to provide financial information to the court. If they lose, the opposing side can apply to increase the cap if they think the applicant can afford to pay more.

The government said the proposals were designed, in part, to prevent claimants abusing the process of judicial review to delay or stop projects.

But Leigh Day said environmental cases make up less than 1% of the total number of judicial reviews lodged each year in 2013 and 2014. And compared with all cases, environmental judicial reviews have higher success rates.

The Ministry of Justice (MOJ) said it did not believe the changes would prevent or discourage individuals or organisations from bringing meritorious challenges.

But only a handful of participants in a consultation on the proposals agreed with this conclusion. Of the 234 responses on this proposal, only four supported it.

“Chilling effect on challenges”

According to the MOJ, some participants said the new rules would be “onerous, complex and have a chilling effect on challenges”. Others argued that the current cap on costs was not the total amount a claimant had to pay. They also had to find court fees and their own legal costs, which were often £25,000 or more.

Jamie Beagent, a partner in 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.”

He added:

“These proposals could be in place as soon as next month, making any challenge of this new enforced regime, through judicial review, difficult and potentially prohibitively expensive.”

The Green Party MP, Caroline Lucas, told The Guardian:

“We know that high and uncertain costs have a chilling effect on the ability of ordinary citizens and civil society to hold the government to account on these issues. In this context, these proposals represent a huge threat to environmental justice and we will fight them every step of the way.”

The Ministry of Justice (MOJ) said the rules would be changed by the Civil Procedure Rule Committee of the House of Commons. The impact would be reviewed two years after the rules come into force.

An MOJ spokesperson said:

“We want a justice system that works for everyone. The cost of bringing environmental challenges must not be prohibitively expensive, especially to those with limited means. Our proposals will also deter unmeritorious claims, which are expensive and delay vital infrastructure projects.”

The MOJ said the changes would be made as soon as parliamentary time allowed and would not apply retrospectively to cases already underway. The challenges undertaken against fracking decisions in North Yorkshire and Lancashire would not be affected, a spokesperson added.


Minister of Justice Costs Protection in Environmental Claims

Leigh Day press release

12 replies »

    • This is a good move by government in checking abuse by groups with vested interests , including Russian money and bosses of green energy companies to delay shale exploration which will reduce the price of gas in UK. where do we draw the line, the government cannot function with such behavior, for every decision there will be opponents and it will be never ending chaos where the only winners are lawyers. Green energy is not the full solution for the problem, on one day in LBC, Caroline Lucas was arguing that Airports should not be expanded and people should not fly more as it will increase green house gases, if you are following this person it is anyone’s guess how brilliant you are !

      • Fascinating glimpse into the USA pro fracking mind here in this post, probably a ballpeeny alt id i recognise the style, and it mentions some things which are wide open windows into the psychology of the condition. The first clue is the mention of ‘checking abuse by groups with vested interests’ this is classic cognitive dissonance since this is precisely the mind set that the pro fracking farms are doing themselves. The mention of Russian money and bosses is also a dead give away to the same USA paranoia regarding the scapegoat influence of Russia, Israel and Mexicans are not enough. In China after the death of Mao Tse Tung everything was blamed on the ‘Gang of Four’ The Nazis of course blamed everything on the Jews amongst others, in USA of course it was Communism, these are just political scapegoats to put down and blame everything on outside influences when the real enemies were and are firmly ensonced into the establishment. One might suggest this post from USA is just such an outside influence into UK matters There is also the mention of Green energy companies somehow being responsible for influencing the anti-fracking movement, this is another example of scapegoating to denigrate opposition to fracking, i have seen no evidence whatso ever that such an influence even exists, perhaps the writer could provide proof. Also mentioned is that the government, i assume this post means UK not USA? cannot function with with such behaviour? I wonder what deleterious effect democracy has on a government that prevents it functioning?? One suspects what is being referred to here is the opposition to fracking putting a spanner in the works of the fracking plans to partition and exploit this country from the USA. Another crack at lawyers, hope they do not need one soon. There is also a claim that Green energy is is not the full solution to the problem, but fails to say exactly where such a system fails to do so, when it is plain to anyone that it is the only way to go. Frankly the mention of people not flying any more is spurious at best, the simple truth about jet turbine engines is that they are becoming more and more efficient and re breathing exhaust gases is the way to go along with short strip v-tol design easily applicable to commercial flights.
        This post indicates the typical political strategy, all is problem, all requires the saviour of a new exploitation to solve problems. Government and business will never solve problems, they exist only to handle existing and exploit ones and create more for the next election to shout about.
        People solve problems, people here will solve our problems without your interference and say so.

        She (England) should have died hereafter;
        There would have been a time for such a word.
        Tomorrow, and tomorrow, and tomorrow,
        Creeps in this petty pace from day to day,
        To the last syllable of recorded time;
        And all our yesterdays have lighted fools
        The way to dusty death. Out, out, brief candle!
        Life’s but a walking shadow, a poor player
        That struts and frets his hour upon the stage
        And then is heard no more. It is a tale
        Told by an idiot, full of sound and fury
        Signifying nothing.

        Have a nice day

        • Phil c long story without any essence making a wrong assumption based on the time of post of US interference, I am a brit living in Kent.

          Long response does not make it right. We need to have right mix of Green and fossil fuels to sustain the economy, number one, cost of renewable energy would be many time per house hold, then there is a problem of backing up enormous energy which is not possible when wind mills don’t run and when there is no sun for solar energy, remember countries boasting 100% green energy are depending on
          neighboring countries the produce energy using fossil fuels.

          FOE ad was corrected by advertisement watchdog for spreading misinformation, we all know that.So anti frackers are manipulating the facts

          Oil is a national resource and UK will eventually frack for energy security, this board seems to be biased towards anti frackers, most of the articles and post are an example on this web site, though the person who owns the web site boasts of independent journalism.

          We need to have a grown up conversation in the interest of national security, let the government deal with it, they are elected and have qualified people with a holistic view.

          One of the anti frackers not disclosing source of funds, clearly seems fishy either russian money or from green company boses, otherwise why would she not disclose the source of finance.

          • Good response, wish you had said that the first time instead of denigrating opposition to fracking from anonymity and generality. We do listen you know, but scatter shot will only return the same.

          • I’m still fascinated at this funding comment. Lets get this straight first, I am English, I live in Dorset look at my google page, I am not anonymous. I am Pro Life, not anti fracking, I have no funding other than my own, i am also pro truth, I see an awful lot of US posts here masquerading as UK. You say one AF will not reveal funding, tell me does the PF reveal their funding? Then there is this Russian reference, that simply cannot be substantiated, if you have proof of this please say so. I know many PL workers and when I asked if any knew of Russian interest, let alone funding the response was incredulous laughter. All the PF people I spoke to used their own money that is very limited, local support gives some but tiny compared to the massive backing and funding the PF throws around. I would be more suspicious of the PF funding and government favouritism over democracy. Seems fishy works both ways. Yes we have a short term deliberately engineered shortfall in energy and ALL alternative sources should be funded and researched, however we see government turning its back on renewables and going for broke on FF as well as way over expensive nuclear foreign funded security compromising plutonium production to feed the weapons industry. Its very simple, the people of this country who will be poisoned by fracking would rather go cold than have their lives and health destroyed. The government has foisted this world renowned poisonous process on the peaple and we have objected to being undemocratically forced to submit to this and will continue to do so. Why do you find that so difficult to understand?

          • Thought I would respond in defence of Drill Or Drop, I have posted here for a while now and I get moderated too, and rightly so. I have not once seen any bias here, indeed sometimes I get moderated because I get drawn in to the deliberate provocation and triumphalism displayed by the PF posts. I try to stand back and be objective, but the destruction of innocent peoples lives by PF and government is simply unacceptable by any rational being. If you don’t like what is being posted here, then state precisely here and now what you object to? There is no propaganda here, no favouritism, the influence of PF and government holds no sway here. Do you want only PF propaganda or truth?

  1. Are this government so fearful of the people opposing them that they must stifle it so viciously? Unable to argue legally they hide behind the costs of bringing an action about something they cant defend and do not want to be made revealed in public! What price democracy? Too expensive to anyone not in the power elite cabal.
    Time to end this farce.

  2. One of the elements of The Human Rights Act 1998 and it’s governing legislation, The European Convention on Human Rights is Right to Justice. It strikes me that if Judicial Review is cost-prohibitive or disproportionately expensive, then these new rules are a direct contravention

  3. Off subject but a link to some experiments with alternative wind turbines, some quite beautiful and promising, some fanciful, some hilarious, if every house was fitted with such devices, demand would drop dramatically, excess energy sold to the grid and we would be building an intelligent future, not destroying the present one.We dont need big wind farms, just act locally and intelligently.

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