The government has been ordered to pay the maximum costs to three charities available under rules on costs in environmental cases in a case that challenged changes to those very rules.
The environmental costs protection regime introduced in 2013 caps defendants’ liability for claimants’ costs at £35,000, and that is what Mr Justice Dove has awarded the Royal Society for the Protection of Birds, Friends of the Earth and ClientEarth.
The trio and their solicitors, Leigh Day, said this was definitive proof that they triumphed in the case, even though ultimately they did not get the remedy they sought.
Costs for unsuccessful environmental claimants were capped at £5,000 for individuals and £10,000 for organisations, but changes introduced on 28 February 2017 allowed judges to vary the cost cap during a case.
The charities’ judicial review argued that this weakened financial protection for claimants in environmental cases, who faced unspecified costs, contrary to the Aarhus Convention.
The High Court held that the government had “properly” conceded that the claimant’s costs may be a material matter for the court to consider in determining any application for a variation of the costs caps.
It also said that the rules needed to change so that if a dispute in relation to the appropriate level of costs caps were to proceed to a hearing, it should be in private in the first instance.
Finally, Dove J said it would be “beneficial” for CPR 45.45 to specify that any application to vary the default costs caps should be included within the acknowledgement of service.
Ruling on the costs last week, the judge said: “I am unable to accept the defendant’s submissions that the claimants’ entitlement to costs should be reduced to 50% or some other figure.
“Whilst it is correct that in relation to ground 1 the judgment did not lead directly to a quashing order, it was necessary for the court to provide detailed analysis of the appropriate procedures to be followed to ensure compliance with EU law requirements.
“The claimants’ action in bringing the claim enabled the court to provide authoritative guidance in relation to the lawful approach to cost capping in the context of the changes made to the CPR allowing for cost caps to be adjusted.”
As we reported last month, the Civil Procedure Rule Committee is looking at the changes that need to be made following the judgment, but the part of the ruling on private hearings has been put on ice pending the committee’s ongoing review into open justice.
Friends of the Earth lawyer William Rundle said: “In the face of further government protestations, the court has made it crystal clear that the claimants were right to bring this case, and so the government should pick up our full legal bill.
“Our claim has enabled an authoritative and detailed ruling, restricting how these new rules must work to be legal. This is a ‘big win’ for a more inclusive system for environmental cases in England and Wales, otherwise people with less money could have been excluded from accessing justice and clearly that’s wrong.”
Martin Harper, RSPB’s director of global conservation, added: “Litigation is always a last resort but the clarity secured by this case will make it less onerous for the public and environmental NGOs to challenge potentially damaging environmental decisions.
“The judge awarded us our full costs in this case on the basis that such clarity is in everyone’s best interests and the interests of access to justice.”
ClientEarth lawyer Gillian Lobo said: “We brought this case because of the real uncertainty and chilling effect created by the government’s new costs rules for those who have to go to court to protect the environment.
“By ordering the government to pay the claimants’ full legal costs, the judge has reaffirmed the need for us to bring this case and our victory for access to justice.”