High Court orders government to amend environmental costs cap rules

Smith: hugely important judgment

Three pressure groups have claimed victory in their High Court battle against the new costs regime for cases involving the environment.

Mr Justice Dove ruled that rule 8(5) of the Civil Procedure (Amendment) Rules 2017/95, which allowed for default caps on legal costs to be varied at any point during the case, rather than remaining fixed throughout, must be amended.

He said the rules would benefit from further clarification in key ways but would remain in place.

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.

But the new rules, introduced on 28 February, allow judges to vary the cost cap in 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, who faced unspecified costs, contrary to the Aarhus Convention.

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

Dove J also ruled that the Ministry of Justice must change its rules to ensure that any hearing about costs protection limits takes place in private.

In a statement, the three groups said: “Today’s verdict is an important victory in the battle for better access to justice in England and Wales.

“People who bravely stand up for nature by going to court can now do so in the knowledge that, once the costs are fixed, they will not be blindsided by a crippling legal bill they were not expecting and hadn’t budgeted for.

“Another victory from the hearing is that claimants will no longer have to reveal their private financial details in open court.”

Their solicitor, Rowan Smith of Leigh Day, added: “This is a hugely important judgment for anyone who cares about the environment. We have achieved major concessions to the government’s rules, which make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.

“Evidence before the court gave examples of successful legal challenges to protect birds, beavers and air quality, all which may not have been pursued under the new rules but for this landmark ruling.”

A Ministry of Justice spokesman said: “We are pleased that the High Court supports our approach to environmental costs protection, which ensures individuals are not expected to pay above their means.

“We will address the issue of private hearings and set out our position in due course.”

The groups, all charities, had their own costs capped at a total of £10,000 for the case, which was fast-tracked to a hearing.

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