There is no immediate need for the Civil Procedure Rule Committee (CPRC) to introduce a new privacy rule for certain costs issues in environmental cases as it could conflict with its open justice review, it has decided.
The committee was responding to Mr Justice Dove’s ruling in a judicial review brought by three environmental charities this summer, which said hearings about costs protection limits should be held in private.
In that, the judge said 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.
“I am satisfied that the chilling effect which the prospect of the public disclosure of the financial information of the claimant and/or his or her financial supporters would have on the propensity to bring meritorious environmental claims would be in breach of the requirements to ensure wide access to justice set out in the [European Court of Justice] jurisprudence.”
As we reported recently, the committee is reviewing the rules to emphasise the importance of open justice, including a possible default position that all court hearings should be conducted in public.
Mr Justice Kerr, chair of the sub-committee on open justice, told a meeting of the CPRC last month that the rule changes proposed by the Ministry of Justice (MoJ) to ensure hearings were in private where the financial details of parties were being considered, would only “add to the provisions the subcommittee intends to remove”.
According to minutes of last month’s meeting, Mr Justice Coulson – who chaired the meeting and is deputy head of civil justice-designate ahead of his elevation to the Court of Appeal next March – “drew the committee’s attention” to a letter received from Leigh Day, solicitors for the claimants, asking the CPRC to implement changes set out in the Dove judgment “immediately”.
However, Coulson J said there was “no immediate requirement” to amend practice direction 39 as the judgment stood.
He said “it would be unfortunate to make an additional provision now, only to remove it again once the review of open justice is completed”.
According to the minutes, a committee member “reminded the full committee that it may be more than a year before the open justice review is completed, as there would be a full consultation”.
Government lawyer Alasdair Wallace noted that in respect of the relief sought by the judicial review, the undertaking made by the MoJ was merely to put the proposition to the rule committee, which it had done.
Coulson J “indicated that a response would be sent to Leigh Day indicating that their letter had been brought to the attention of the committee” and that their request to amend PD 39 would be “anxiously considered”.
Also in Dove J’s ruling, he said it would have been “beneficial” for CPR 45.45 to specify that any application to vary the default costs caps should be included within the acknowledgement of service, while he said 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.
A number of suggestions on the draft put before the committee were made at the meeting and it was agreed that a revised draft would be presented at its next meeting.
Under the environmental costs protection regime introduced in 2013, costs for unsuccessful environmental claimants were capped at £5,000 for individuals and £10,000 for organisations. Defendants’ liability for claimants’ costs were similarly capped, at £35,000.
New rules, introduced on 28 February this year, allowed judges to vary the cost cap during a case. The judicial review – brought by the Royal Society for the Protection of Birds, Friends of the Earth and ClientEarth – argued that this weakened financial protection for claimants in environmental cases, who faced unspecified costs, contrary to the Aarhus Convention.