Legal battle over costs caps for environment cases to go to Supreme Court

The legal challenge against the trade agreement is being brought by campaign group Foodrise, which argues that climate change impacts were not properly assessed before UK legislation implemented the agreement.

In response to the claim, the government went to the Court of Appeal (CoA) to challenge the Aarhus costs cap on the case, with the CoA ruling in the government’s favour. 

Under the Aarhus Convention, which the UK is a part of, costs caps are granted to environmental legal challenges through international law protections, which safeguard right to access environmental justice.  

Now, Foodrise has successfully applied to contest the CoA’s decision in the Supreme Court, with a hearing set to take place most likely next year.  

The group says that the removal of the costs cap will make the claim prohibitively expensive and could set a damaging precedent, blocking access to justice for other environmental campaigners. 

The judicial review claim lodged by Foodrise challenges the legislation that brought in the 2023 UK-Australia Free Trade Agreement. 

Foodrise says the agreement will harm the environment due to the higher climate impact of meat and dairy production in Australia. The group says that meat and dairy produced in Australia has a higher emissions intensity and a larger deforestation footprint than meat and dairy produced in the UK.  

Foodrise argues that the government failed to have regard to the UN Framework Convention for Climate Change when signing the trade agreement, and also raises concerns that it will undercut British meat and dairy producers. 

After launching in 2023, all three legal arguments in the claim were granted permission in June 2024 along with an Aarhus costs cap. The cap is facilitated by the Aarhus Convention and applies to all environmental cases, capping legal costs for NGOs at £10,000.  

However, the government went to the CoA in July 2024 to challenge the judge’s decision to grant the costs cap, with the Appeal Court ruling in its favour in May 2025. 

In essence, the government contests that the claim relates to the environment. 

In July, Foodrise applied to the Supreme Court for permission to appeal to overturn this ruling, which has now been granted.  

The group says that the government’s appeal could put the UK in breach of the Aarhus Convention, which was signed in 1998 along with other members of the United Nations to give the public better access to environmental justice.  

Carina Millstone, executive director at Foodrise, said: 

“We’re taking this to the Supreme Court as the ramifications of this decision go far, far further than our challenge to the government’s catastrophic and unscrutinised UK-Australia trade deal. This is much bigger than us – it’s about stopping the government from blocking access to environmental justice now and in the future. We’re in a climate emergency and the ability to properly, legally scrutinise decisions on environmental grounds is absolutely crucial. We will fight tooth and nail to ensure this decision is overturned.” 

Leigh Day solicitor Rowan Smith, who represents Foodrise, said: 

“Protecting access to environmental justice and holding decision-makers to account is a hugely important matter. The Aarhus cap ensures that campaigners are not priced out of tackling environmental issues in the courts. This bid by the government to remove the costs cap for Foodrise’s case could result in a narrowing of scope of the Aarhus Convention, pricing Foodrise and other campaigners out of bringing claims, and ultimately leading to fewer legal cases scrutinising the Government’s record on the environment. We are pleased that the Supreme Court has seen the merits of our client’s argument, and now look ahead to making their case in the UK’s highest court.”