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NGOs win legal battle over access to environmental justice

Three environmental NGOs have won their High Court legal battle against plans by the Government which they claim made it more difficult for individuals and campaign groups to take environmental legal action against Government bodies in England and Wales.

15 September 2017

 The High Court today (Friday 15 September 2017) ruled that key aspects of new legislation (under 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.

The Judge held that:

[39] If the application was made because the defendant had failed for whatever reason to engage with the question of whether or not the default levels of the costs caps were appropriate at the permission stage…[s]uch an application would not have been brought as soon as it became apparent that it was necessary or desirable to make it. It would additionally, in principle, be in breach of the EU principles which have been set out above.

[57] I am satisfied that if a dispute in relation to the appropriate level of costs caps were to proceed to a hearing (as opposed to being dealt with on the papers at a time when the claimant’s financial information would remain confidential) then the rules should provide for that hearing to be in private in the first instance

[59] Following my judgment, based upon the authority set out above, it will be clear that the court may take account of a claimant’s reasonable costs in determining whether proceedings are “prohibitively expensive” and any application to vary the costs caps will be adequately guided.

The three NGOs who brought the judicial review, represented by law firm Leigh Day, were the Royal Society for the Protection of Birds (RSPB), Friends of the Earth and ClientEarth who claimed the new rules, which were implemented by the Government in February this year, would have a chilling effect on environmental legal challenges.

The new rules brought in by the Government countered the Aarhus Convention, an international agreement which gives EU citizens certain rights regarding access to justice in environmental matters.

The previous rules, which were based on the Aarhus Convention, provided certainty for claimants in environmental cases, by limiting their cost exposure to no more than £5,000 (if they were an individual) or £10,000 (if they were an organisation) should they lose the case.

But for this challenge, the new rules, as well as endangering this certainty for people and groups bringing environmental legal cases, could also have meant that: hearings on setting a different costs cap level, which will discuss the resources of a claimant or their donors, would not be required to be heard in private; and the costs of a claimant’s legal team would not have necessarily been taken into account when a varied cap was set.

Today’s judgment follows a hearing in the High Court on Wednesday 19 July 2017.

Rowan Smith, solicitor at Leigh Day, said: “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.”

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