UK: Court of Appeal grants protective costs order in environmental case; UN environmental

As reported in the previous edition of the PILA bulletin, the UN Aarhus Convention Compliance Committee has issued draft rulings (please click here to view the PILA Bulletin), which find that the UK courts are prohibitively expensive for citizens to take environmental cases. The UK contends that their domestic provisions are in line with the Convention's requirements; however they will have to revisit the position if the ruling is confirmed. The specific provision states that access to environmental justice must not be prohibitively expensive (Article 9(4)), however although Ireland has not yet signed-or ratified- the convention, this same requirement is necessitated through EU law by EU Directive 85/337. Please click here to view the PILA Bulletin article on the Directive. Crucially, in Commission -v- Ireland the ECJ has clarified that for member states to satisfy this requirement, the sole existence of a judicial discretionary power to depart from the usual "costs follow the event rule" does not suffice. This introduces the potential for the necessity of a Protective Cost Order (PCO) in certain circumstances in the jurisdiction of Ireland, both in relation to environmental cases but also more generally.


To view the judgment of Commission -v- Ireland C-427/07 please click here.


Should the draft rulings be confirmed, the interpretation of the Article 9(4) provision - that the procedures be "fair, equitable, timely and not prohibitively expensive"- would then be regarded as what is fair to the claimant only, and not the defendant public body. This is in contrast to the recent decision of the English Court of Appeal, in the case of R (Garner) v. Elmbridge BC [2010] EWCA Civ 1006, where it was found that the PCO allocation may be of a reciprocal nature, although it did note that the limit on liability for both parties does not necessarily have to be the same. Although the draft rulings are issued by the UN Aarhus Convention Compliance Committee and are therefore expressly related to environmental cases and not binding under EU law, the rulings are nonetheless very important. The principles underpinning UN law are reflected within EU law and are also the principles from which this binding law emanates. These UN Aarhus Convention Compliance Committee findings highlight the need for law reform of a concrete and clear manner in the area of PCOs, whether through changes to the rules of the courts or by legislative means. The Commission's rulings, coupled the ECJ decision of Commission -v- Ireland, that judicial discretion does not satisfy the EU directive requirements, exposes the pressing need for clarity and development within the area of PCOs in the jurisdiction of Ireland.


To view an article on this issue by the UK human rights blog please click here.

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