A fixed recoverable costs regime is to be introduced for environmental judicial review claims, the Ministry of Justice (MoJ) has announced.
Individual claimants will have to pay no more than £5,000 in adverse costs, and organisations no more than £10,000; the liability of the defendant to pay the claimant’s costs will be capped at £35,000.
This was despite the majority of respondents to an MoJ consultation on costs protection in such cases opposing the £5,000 figure. The consultation closed in January but the MoJ only reported back on it this week, despite receiving just 22 responses.
The aim of the consultation was to codify protective costs orders to ensure the UK’s compliance with the Aarhus convention on access to justice in environmental matters and the requirement that court procedures should not be “prohibitively expensive”.
The MoJ said respondents broadly supported its proposals, with many saying that the prospect of high costs was a deterrent to bringing judicial reviews within the scope of Aarhus.
“Whilst they may not deliver everything that every respondent would like, and some respondents might prefer other approaches such as some form of one-way costs-shifting, most respondents also agreed that the consultation proposals would make a significant improvement to the status quo,” the consultation report said.
Though less than a third supported £5,000 as the claimant cap, there was no strong consensus on what the figure should be and the government argued that it is “a proportionate amount to ask individual claimants to pay”.
However, it did recognise that part of the concern around this was the proposal that there would be no costs protection until the permission stage; as a result it will instead apply costs protection from the time the claim is issued, so long as it is within the scope of the convention. Another key change is that neither side will be able to challenge the costs cap and seek a higher amount.
The MoJ is also to adopt for these cases the rule proposed by Lord Justice Jackson for appeals on cases that have been heard under a fixed-costs regime. This means that the judge considering whether to give permission to appeal will at the outset determine the appropriate costs limits, having had regard to the decisions in the lower courts.
The government will put proposals to the Civil Procedure Rule Committee “at the earliest opportunity” with the aim of including them in the body of rule amendments planned for making in December. The changes, including the cap levels, will then be reviewed on a regular basis.