UK protective costs orders update: CJEU decision and new rules put in place

There have recently been two significant developments in the United Kingdom in their approach to protective costs orders (PCO) under the Aarhus Convention. The Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention) seeks to ensure all citizens are able to obtain access to justice through the courts in relation to environmental matters. This access must not be prohibitively expensive.

On 11 April, the Court of Justice of the European Union (CJEU) delivered its judgment in R (Edwards & Pallikaropoulos) v Environment Agency et al. The case concerned a judicial review challenging the grant of an environmental permit to a cement works.  The case had been heard, on appeal, by the House of Lords (which, on 1 October 2009, became the UK Supreme Court). The second claimant lost. The issues in the case specifically concerned the EU Directives which incorporated the Aarhus Convention. The second claimant was ordered to pay costs of £88,000. The UK Supreme Court costs officers decided that they could consider the second claimant’s challenge against the costs orderwhich was based on the EU Directives implementing  the Aarhus Convention. This decision was appealed to the Supreme Court.  The Supreme Court asked the CJEU, among other questions, to define what “prohibitively expensive” meant.

The CJEU dealt with a number of issues. Firstly, the question of whom “prohibitive” refers to? Is it subjective or objective? The CJEU answered this in a complex manner in that it stated that the Court should not look at the estimated financial resources of an “average” claimant, nor should it look solely at the claimant’s financial situation. It appears that the CJEU is advocating an approach somewhere in between a subjective and objective approach.  The judgment, the Court said, “may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect 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 procedure, the potentially frivolous nature of the claim at its various stages, and the existence of a national legal aid scheme or a costs protection regime.”

Secondly the Supreme Court asked the CJEU was it relevant that the claimant was not in fact deterred by the prospect of costs?  The CJEU simply said that the fact that a given claimant was not deterred from litigating was not in itself sufficient to determine that the proceeds were not prohibitively expensive.  Finally the Court stated that the approach at the various stages of the case and appeals should not differ.

The second claimant did not receive any clarification from this judgment though as the sharing of responsibilities between national and EU courts ensure that it is ultimately up to the UK Supreme Court to decide the extent to which she is obliged to bear any of these costs.

Click here to read the opinion of the Advocate General of the CJEU 

In other protective costs order news, new rules which codify the regime in the UK came into force on 1 April. Bulletin readers may recall the rules were published in January 2013.

The new rules on costs in environmental judicial review cases generally appear to favour the claimant in that it caps the recoverable costs at £5,000 for an individual, £10,000 for an organisation and a cross-cap (which would come into play if the claimant wins the case) on the claimant’s recoverable costs of £35,000. Despite this there has been criticism of the rules. This criticism includes: the exclusion of private law environmental claims; and the fact that the cap is too high for certain individuals.

Click here to read the Civil Procedure (amendment) rules 2013 in full 

Click here to read an article from the UK Human Rights Blog 

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