High Court fast-tracks challenge to environmental costs reforms

Thornton: new rules are a disaster for the environment

The High Court has fast-tracked a judicial review brought by three charities challenging the new costs regime for cases involving the environment.

Mr Justice Dove also capped the liabilities of legal environmental pressure group ClientEarth, Friends of the Earth and the RSPB at a total of £10,000.

Under the environmental costs protection regime introduced in 2013, costs for unsuccessful claimants were capped at £5,000 for individuals and £10,000 for organisations. Defendants’ liability for claimants’ costs were similarly capped, at £35,000.

Under the new rules introduced on 28 February, judges are allowed to vary the cost cap in a case. The charities launched a judicial review, arguing that this weakened financial protection for claimants, who faced unspecified costs.

ClientEarth has claimed the new rules would make it “virtually impossible” to bring an environmental case in the public interest.

The group said the government had 21 days in the fast track, instead of the usual 35, to file its defence, and after the 11 May deadline, the charities would have seven days to reply before a hearing date is set. The hearing itself is expected by the group to take place in around six months.

James Thornton, chief executive of the ClientEarth, said: “People must be able to go to court to defend their environment. The government’s new rules cynically undermine this right.

“By fast-tracking our case and protecting us from debilitating legal costs, the judge has clearly signalled the importance of our challenge to the government.

“These new rules are a disaster for the environment. Faced with the risk of almost unlimited costs, who would put their finances, maybe even their house, on the line?

“People and charities need financial certainty before they bring a case to protect people and the planet. After Brexit, this will become even more important, because the EU won’t be able to hold our government to account.”

In its report on the reforms, the House of Lords statutory instruments committee, concluded earlier this year: “The requirement of article 9 of the Aarhus Convention is that, in relation to environmental matters, contracting parties ‘shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive’.

“The MoJ has not provided a convincing case for changing from the previous standardised system of cost capping, which was well understood, to this more complex system which appears to have significant potential to increase both the costs for public administration and the uncapped litigation costs of the claimant.”


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