Three charities have launched legal proceedings against Lord Chancellor Liz Truss over new costs rules for environmental cases, which came into force yesterday.
Legal environmental pressure group ClientEarth, along with Friends of the Earth and the RSPB, argue that the rules – which allow judges to vary the cost cap in a case – are unlawful and have applied to the High Court for judicial review.
They claim the new rules weaken financial protection for people bringing a case, meaning they face unspecified legal costs in return for going to court to protect the environment. Judges will be able to increase the costs cap at any stage, “making it impossible to know how much a case will cost from the start”.
The environmental costs protection regime, introduced in 2013, capped the costs that a court can order an unsuccessful claimant to pay to other parties at £5,000 for individuals and £10,000 for organisations. Defendants’ liability for claimants’ costs were similarly capped, at £35,000.
The rules did not allow for variation in individual cases; however, the Ministry of Justice announced last November that it would allow for this, despite opposition from most of the 289 respondents to its consultation.
James Thornton, chief executive of ClientEarth, said: “The new rules spell disaster for the environment. With no certainty on costs, who will put their finances, perhaps even their house, at risk to bring a case?
“Individuals and campaigners need financial certainty before they bring a case in the public interest. After Brexit, this will become even more important, because the EU won’t be there to make sure our government is following its own environmental laws.
“It is ironic that we have to bring this case before the court rules change, because the financial risk introduced by the new rules is too high to bring it afterwards.
“The danger of the government’s plan is clear and it must be changed so people can still go to court to protect the environment.”
In its report on the reforms, the House of Lords statutory instruments committee, concluded earlier this month: “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.
“While asserting that the changes are to ‘discourage unmeritorious claims’ no figures are presented that illustrate the proportion of Aarhus claims that fall into that category…
“Although the MoJ states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts.”
A report last week by a UN committee also found that the changes “would increase rather than decrease uncertainty and risk of prohibitive costs for claimants”.