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European Court protects environmental legal action from UK government reforms

Environmental lawyers welcome European Court judgment protecting costs in environmental legal proceedings.

14 February 2014

The environmental law team at law firm Leigh Day has welcomed the final judgment of the European Court on the UK’s compliance with EU law on costs in environmental legal proceedings which was announced yesterday (Thursday 13th February 2014).

The case arose as a result of a complaint lodged with the European Commission by The Coalition for Access to Justice for the Environment (a coalition of environmental NGOs). Both EU law and the UNECE Aarhus Convention oblige Member States and contracting Parties to ensure that environmental legal proceedings are “not prohibitively expensive”.

This means that ordinary citizens and civil society groups should be able to afford to go to court to challenge the decisions of public and private bodies that threaten the environment.

The judgment has significant implications for the Government’s ongoing attack on Judicial Review, which often represents civil society’s last opportunity to ensure the decisions of public bodies are lawful.

In the last eighteen months, the Ministry of Justice has announced a series of measures to undermine the process of JR, which it says acts as a “brake on economic growth” and is used for “PR purposes, or as a tactical device to cause delay”.

While many of the Government’s harmful proposals apply across all judicial review cases, the Government has been unable to unravel improvements to the costs regime for environmental cases introduced in April 2013 as a result of this, and other, legal proceedings against it concerning “prohibitive expense”.

This judgment confirms that the Government cannot rollback on the new costs regime because claimants must have certainty with regard to their costs liability. It confirms that domestic courts cannot look exclusively at the financial means of individual claimants but must also carry out an objective analysis of the amount of the costs.

In deciding whether a figure would be “objectively unreasonable”, the court must take a number of other factors into account, including whether the claimant has reasonable prospects of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and whether public funding or other costs protection schemes are available.

Richard Stein, Partner at Leigh Day said: "At a time when the government is making massive attacks on the ability of concerned members of the public to use judicial review to protect against abuse of power by the executive, this decision of the European Court is an extremely positive development.

“Through proposed changes, the government plans to make it impossible for most individuals and groups to face the increased financial risk of bringing a judicial review. With this judgment, the European Court has confirmed that it will continue to protect the rights of the public to bring judicial review challenges in the environmental field, which are not prohibitively expensive.

"We are left with the unacceptable situation that in other areas beyond the reach of the European Court it will be ‘prohibitively expensive’ to have access to justice to keep the government in check.”

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