Government told to change rules on costs in environmental court cases

170830 RCJ court of appeal day 2

Anti-fracking campaigners at the Court of Appeal on 30 August 2017. Photo: DrillOrDrop

The High Court has told the UK government to change some new rules for environmental court cases to protect those taking legal action.

Three organisations, which challenged the Ministry of Justice, said the rules had made it more difficult for individuals and campaign groups to challenge public bodies in court.

The rules, introduced in February 2017, scrapped automatic caps which limited the costs of losing a legal challenge in England and Wales. Instead claimants had to provide detailed information in open court about their personal finances and a judge could increase the limit on costs at any stage of a case.

Campaign organisations said this made it impossible for individuals and charities to know at the start of a case what they were liable for if they lost.

In a judgement today, Mr Justice Dove said the rules on cost caps would benefit from further clarification.

In almost all cases cost caps will now be fixed at the beginning of a case and personal finances will always be discussed in private.

Judicial reviews, statutory challenges and appeals have been used recently by opponents of onshore oil and gas operations at Balcombe in West Sussex, Preston New Road in Lancashire and Kirby Misperton in North Yorkshire.

“Major barrier”

The challenge had been brought by the Royal Society for the Protection of Birds (RSPB), Friends of the Earth and ClientEarth. They claimed that the new Civil Procedure (Amendment) Rules were a major barrier to people and charities who wanted to use the law to hold public bodies to account.

In a statement following today’s judgement the three organisations said:

“Today’s verdict is an important victory in the battle for better access to justice in England and Wales.

“People who bravely stand up for nature by going to court can now do so in the knowledge that, once the costs are fixed, they will not be blindsided by a crippling legal bill they were not expecting and hadn’t budgeted for.

“Another victory from the hearing is that claimants will no longer have to reveal their private financial details in open court, as any hearing about costs protection limits will now take place in private. The MOJ must change its rules to include this, so that they are lawful.”

Rowan Smith, a solicitor at Leigh Day, which represented the three organisations, said:

“This is a hugely important judgment for anyone who cares about the environment.

“We have achieved major concessions to the Government’s rules, which make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.

“Evidence before the court gave examples of successful legal challenges to protect birds, beavers and air quality, all which may not have been pursued under the new rules but for this landmark ruling.”

Under the old rules, the costs of anyone losing an environmental challenge were capped at £5,000 (if they were an individual) or £10,000 (if they were an organisation). They were introduced partly because of the international Aarhus Convention, which required that legal action to protect the environment was “fair, equitable, timely and not prohibitively expensive”.

“Measured adjustments”

The Ministry of Justice (MOJ) said it had “made measured adjustments to the regime of costs protection” for certain environmental claims in England and Wales, following a consultation. Ministers had argued that the changes would allow “meritorious claims without prohibitive expense” and “reduce the potential for unmeritorious claims”.

Today the MOJ said:

“We are pleased that the High Court supports our approach to environmental costs protection, which ensures individuals are not expected to pay above their means.

“We will address the issue of private hearings and set out our position in due course.”

8 replies »

  1. Hmm the claimants are claiming victory however they have been defeated as they were aiming to keep the current caps. For example Mr Corre will have to front a far larger sum due to his personal financial status.
    The courts are there to make money to pay for extortionate salaries. I can assure you they view small caps as a complete hindrance. Possibly why there are zero wins for the antis thus far.
    It’s only fair people living in a capitalist country foot a proper bill without the hand me downs. I’m not interested in hearing from unsuccessful people with a gripe about industry.

    • I disagree, this is a victory because of the concessions from what was proposed. The average person will have nothing to fear now bringing a legal challenge and quite righty so, the High Court saw this for exactly what it was, an attempt by this government to obstruct access to justice on environmental matters. If this was a victory for the government, it would have gone through unamended.

      • KatT. You may practice in the world of law but you fall far short of knowing anything about how to barter! You set the goal post higher than you need to and begin….
        The Government knew their proposals would not get through unamended. It is a victory for industry and the Government.
        Watch what happens with future cases once this is all signed and sealed.

        • I understand the principles of negotiation but the principles of law are not determined on this basis, I assure you. The finest legal brains do not horse trade and the government does not like to be seen failing in the courts either.

  2. Yep-so we get unemployed, skint persons being used as stooges by certain parties. I suspect that loop hole will be realised and blocked, so I see no real change, except it may be in private.

    “reduce the potential for unmeritorious claims”-that is welcome, except for the QCs..

    • With respect you do not appear to understand the principle of judicial review, you cannot take a case without merit. Even when a JR fails it has had to satisfy the court that there are grounds to bring a case and the bar is set quite high.

  3. It’s a delicate balance, trying to make sure that the Justice system is available to all while also trying to put a limit on ‘frivolous and vexatious’ cases.

    Go too far one way and you end up like the US, where really only those well off can afford to go to Court. Even then, more often than it should, it depends on who can afford the best Lawyers.

    Go too far the other way, and the lower reaches in the Court system get clogged up. This was happening in the UK. A case can get dismissed for being ‘frivolous and vexatious’ early on in the case, but the County Court Judge still has to schedule Court time for it and then spend more time writing up why he made that decision.

    I agree that, unless it’s pertinent to the case (showing the party benefited from fraud, for example), personal finances should never be discussed in open Court.

    Why are the RSBP, FoE and ClientEarth tied in with Leigh Day? After their shameful persecution of British Soldiers, they are the ‘Poster Child’ for greed and unethical behavior in the legal profession.

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