Plans by the Ministry of Justice (MoJ) to rewrite the costs rules for environmental judicial reviews in favour of defendants have been strongly criticised by the Bar Council.
The Bar Council said there were “distinct advantages” to the “existing, simple and certain route” for claimants bringing environmental challenges and it had not seen “compelling evidence” for many of the changes.
It was particularly concerned by the plans to grant costs protection only when permission to apply for judicial review has been granted and require claimants to file at court and serve on defendants at the start of proceedings a schedule of their financial resources.
On the first, the Bar Council said that granting costs protection only after a grant of permission would “create uncertainty and is therefore contrary to the expressed aims of the proposals”.
It went on: “This uncertainty will be pertinent to both parties, but is likely to have the effect of deterring legitimate challenges, particularly given that pre-permission costs can be extensive.”
“However, the paper does not go on to explain why this is a risk worth taking and what, if any, balancing exercise has been undertaken in advancing this proposal.”
The Bar Council said the plans to make claimants serve schedules of financial resources were “burdensome on claimants, unworkable and may deflect claimants from pursuing legitimate challenges”.
It was equally concerned by the plan to change from the indemnity to the standard basis, the way costs recoverable by claimants are assessed where defendants have unsuccessfully challenged whether a claim was covered by the Aarhus Convention.
The Bar Council said the consultation paper explained that the point of awarding indemnity costs was to avoid “weak challenges and satellite litigation” but did not explain why “this sensible avoidance” was no longer needed.
“Removing any costs disincentive on defendants pursuing status challenges is likely to open up satellite litigation as defendants will be more likely to consider it worth trying to knock out a claimant’s case, not on the merits, but on avoidance of a costs risk.”
Other proposals include increasing the costs caps for individual claimants from £5,000 to £10,000, and other claimants from £10,000 to £20,000, while reducing them for defendants to £25,000.
Protection would also be restricted to claims brought by “a member of the public”, which could exclude community groups and other organisations.
The Bar Council said that only one element of the consultation proposals would promote public participation, the proposal to include some statutory reviews within the definition of an Aarhus Convention claim. However the definition would “continue to exclude cases on a number of environmental matters”.
It said other proposals would “hinder public participation and deter legitimate environmental challenges”.