Feedback will challenge government bid to remove legal costs cap in trade deal challenge

The group says that if the government’s appeal is upheld, it could risk reducing the scope of the Aarhus Convention in other cases and potentially hamper future environment legal challenges.

Under the Aarhus Convention, environmental challenges are granted special international law protections which include limiting the cost liability of the group bringing a challenge, stopping claims from becoming prohibitively expensive.

The government is arguing that Feedback’s judicial review claim should not be covered by the £10,000 costs cap on environmental cases for NGOs on the basis that the claim is not a challenge relating to the environment.

Feedback, which is represented by law firm Leigh Day, launched its claim in 2023, and was granted the costs protection in June 2024.

In the claim, Feedback argues that the UK-Australia Free Trade Agreement signed in 2023 will undercut British producers of beef, lamb, mutton and dairy with lower quality meat from Australia.

The group says that the deal will also have a negative impact on the environment due to lower environmental standards in Australian meat production, which Feedback says has a higher emissions intensity and a larger deforestation footprint than meat produced in the UK.

Feedback argues the government failed to have regard to the UK’s obligations under the UN Framework Convention for Climate Change when signing the agreement.

Feedback’s arguments are supported by written submissions from the World Wide Fund for Nature (WWF) who last week were granted permission to intervene in the appeal. WWF’s submissions draw on their prior experience in international processes concerning issues around access to justice in environmental matters.

In July 2024, the government filed an appeal against the judge’s decision to grant Feedback cost protection on a single ground, arguing that the Aarhus costs cap should not apply to the claim. Should the appeal be successful, Feedback may have to withdraw its case due to it becoming too costly.

The group will now argue in the Court of Appeal that should the government’s appeal be successful, it will reduce the scope of claims that are protected by the cap, which could put the UK in violation of the Aarhus Convention.

The convention was signed by the UK 1998 along with other nations, with the aim of enabling the public to have better access to environmental justice and information, as well as for the public to have more participation in decision-making. 

In 2013, cost caps for legal cases concerning the environment were introduced under the convention, in an effort to support public access to environmental justice by ensuring claims are not prohibited by cost for claimants with limited funds.

Feedback executive director Carina Millstone said:

“It’s deeply worrying that the new government is persisting with its predecessor’s attempt to block our scrutiny of the UK-Australia trade deal on environmental grounds. This is a huge waste of time, energy and money, and a clear sign that the government has no intention of breaking with the damaging policies of the last Conservative government when it comes to the environment and climate.

“If we lose and the cost cap is removed, it’s very unlikely we will be able to move forward with our judicial review despite its importance and validity. It’s disappointing that we’re having to fight this in court and that the new government is hellbent on suppressing access to environmental justice.”

Leigh Day environment solicitor Carol Day said:

“The result of this appeal is not only relevant for Feedback’s case, but could also have an impact on future environment cases seeking costs cap protection under the Aarhus Convention. These caps were brought in to support the public’s access to environmental justice, stopping funding from becoming a prohibitive factor in bringing forward a claim. Our client is concerned that the government’s appeal over costs on this case could have wider ramifications by potentially reducing the scope for environmental claims to be protected by the costs cap.”