While the cost of bringing judicial review claims can be very high (upwards of £30,000 if there is a full hearing and the claimant is unsuccessful) because most claimants are required to pay the defendant’s legal costs (the ‘loser pays rule’).
However, special rules apply in environmental cases. As of April 2013, an unsuccessful claimant only has to pay up to £5,000 of the defendant’s costs if they are an individual or £10,000 for any other claim (including groups).
Successful claimants can recover their legal costs from the defendant. In theory these costs are capped at £35,000 - but it is possible that the cap will be increased or even removed in due course.
These funding arrangements mean that prospective environmental cases can be run in a variety of ways - either on a Conditional Fee Agreement (CFA – commonly referred to as a ‘no win no fee’ agreement but which might require payment of a reduced fee if the claim is unsuccessful ) or privately funded (i.e. you commit to funding your own legal fees and the capped liability of the other side if you lose) or on Legal Aid. The type of funding agreement that we are able to offer will depend upon a number of factors, including the resources available to you and the strength of the case.
Conditional Fee Agreements (CFAs) – “no win no fee”
CFAs are available as a means of paying for your own lawyers in judicial review proceedings. The basic principle is that the claimant is not liable to pay its own lawyers if it loses the case, only if it wins - and in such circumstances, it is likely that the defendant will be ordered to pay.
If your case is strong, your lawyers may be willing to represent you on a CFA (or a form of CFA) basis. In reality, this means that you will only need to pay the defendant’s adverse costs if you lose – which are capped at £5,000 for individuals and £10,000 for all other cases.
It may be that those affected by the public body’s decision or conduct are in receipt of means tested benefits such as income support or guaranteed state pension credit. If so, and if the claim has a reasonable chance of success, they may be eligible for public funding (legal aid). In such circumstances the Legal Aid Authority (LAA) covers the costs of the claimants’ solicitors and they are protected from any adverse costs risk. However, if other people who are not eligible for legal aid will also benefit if the judicial review succeeds, the LAA will require a Community Contribution to be made – usually between £5,000 and £10,000, depending on the proportion of those who would benefit who would qualify for Legal Aid.
Given these various options it is often possible to find a way to fund a judicial review challenge and concern about costs should not be an insurmountable barrier to access to the courts.
Again, as before, you should seek expert advice from a public lawyer about your options in relation to funding before deciding whether to pursue a judicial review.
If it is not possible to run a case on a CFA basis, it should still be possible to run it on a private costs basis. This means that you would have to budget for your own legal costs and the defendant’s adverse costs (£5,000 if you are an individual and £10,000 in other cases) in the event that you are unsuccessful.
Your own legal costs will vary depending on the scale and complexity of your case but, as highlighted above, they average around £30,000. You may therefore be looking at a total costs liability of between £35,000-40,000 to take your case. In this situation, you should seek expert advice from a public lawyer before deciding whether to pursue a judicial review.
Other environmental challenges
There is another mechanism for challenging the decisions of public bodies known as a “statutory appeal”. For example, under the Town and Country Planning Act 1990 an ‘aggrieved person’ can apply to the High Court for an order under s.288 of the TCPA 1990 to quash the decision of a Planning Inspector or the Secretary of State on an appeal in relation to a Planning Permission application. Appeals must be made within six weeks of the decision.
A statutory appeal is also possible under s.289 of the TCPA 1990 against enforcement notices and listed building enforcement notices. The application for permission to appeal must be made within 28 days after the date on which notice of the decision was given to the applicant.
The procedure in these cases is very similar to that for judicial reviews. The main difference is that with a s288 appeal there is no requirement to obtain permission from the court to proceed with the case.
At this stage, it is unclear whether all of these cases will automatically qualify for costs protection, although it could be argued that where they concern environmental matters they should do so.