The UN Aarhus Compliance Committee has finalised its findings against the UK.
Readers of the Bulletin may remember that the Committee found the UK to be prohibitively expensive for environmental public interest litigation. The UK responded by saying that they were codifying case law on protective costs orders in environmental judicial review proceedings. The Coalition for Access to Justice for the Environment has expressed disappointment with this response, stating that the only way to ensure full compliance with the Aarhus Convention's cost requirements is by implementing qualified one-way costs shifting (QOCS) in all environmental cases.
Ireland has not ratified the Aarhus Convention but the relevant costs provisions are nonetheless binding through EU directive 85/337. In the recent case of R (on the application of Edwards and another) (Appellant) v Environment Agency & others (Respondents) the UK Supreme Court is referring the question of what test is to be applied to ensure that environmental proceedings are not "prohibitively expensive" under EU Directive 85/337 to the ECJ.
The UK Ministry of Justice has published its report on implementation of the Jackson report on civil litigation costs in the UK. Readers may remember from the Bulletin that this report had proposed QOCS (see above) for judicial reviews.
The Ministry's report confirms that the UK government is codifying case law on protective costs orders. However, it expresses reservations about introducing QOCS to judicial review claims, e.g. that they would increase the number of frivolous applications for leave, thereby increasing public costs of defending applications. The report states that if QOCS is introduced, it should only apply to individuals bring judicial reviews and even then those claimants should be liable for some costs. The Ministry has opened consultation on reforms of civil litigation funding and costs in England and Wales until 14 February 2011.