UK High Court fast-tracks environmental charities’ challenge to prohibitive litigation costs in environmental cases

The High Court in the UK has granted permission to three environmental charities to challenge newly-introduced court regulations which they argued would expose them to prohibitive costs in bringing public interest cases. The High Court agreed to limit the cost liabilities of the charities - ClientEarth, the Royal Society for the Protection of Birds (RSPB) and Friends of the Earth - and the case has been fast-tracked. 

By way of background, the environmental charities involved issued proceedings against the Lord Chancellor and the Secretary of State for Justice in respect of new costs rules for environmental cases. These rules were introduced as a statutory instrument in February 2017 and the three organisations expressed concerns at consultation stage that they possible had the effect of “acting against the intention of the Aarhus Convention that the costs of environmental litigation should not be prohibitive”. These rules allow judges to increase the costs cap in environmental cases at any stage, which the applicants argued made it impossible to gauge how much it would cost to take a public interest case concerning issues such as air pollution standards or the expansion of Heathrow Airport. The new rules also require claimants to reveal their personal finances in open court, including the finances of their donors. 

ClientEarth argued that the rules made it virtually impossible to bring an environmental case in the public interest, and that they would have a ‘chilling effect’ on environmental charities and NGOs engaging in public interest litigation. The decision to introduce the rules was also criticised by a United Nations Committee which was engaged in assessing access to the courts in the UK, which found that the UK Government was not meeting its legal obligations on access to justice under the Aarhus Convention. 

Mr Justice Dove agreed to limit the costs liabilities of RSPB, ClientEarth and Friends of the Earth to £10,000 in total in the proceedings and agreed to fast-track the case to the Court of Appeal, accepting the applicant’s arguments that the rules were already having an impact and were acting as a deterrent to bringing public interest litigation. The Government has 21 days rather than the usual 35 to file a defence and, after the 11 May deadline, the three charities have 7 days to reply. 

ClientEarth chief executive James Thornton said: “People and charities need financial certainty before they bring a case to protect people and the planet. After Brexit, this will become even more important, because the EU won’t be able to hold our government to account.” 

Last year PILA hosted a practitioner's seminar on protected costs orders (PCOs) and public interest litigation. Tom Flynn BL presented on the use of PCOs in the context of environmental and planning litigaiton. A copy of that presentation can be accessed here.



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