Readers of the Bulletin may remember that the UK was to codify rules on protective costs orders and environmental public interest litigation. The UK Ministry of Justice (MoJ) has now opened consultation until 18 January 2012. They consider it "reasonable to require a claimant to pay something towards the costs of an unsuccessful case", reasoning that the Aarhus Convention "does not require that claimants be protected entirely from adverse exposure to costs".
The MoJ proposals suggest that claimants awarded a protective costs order under the rules will be liable for costs to a cap of £5,000. They consider that claimants who cannot afford this risk would in most cases be eligible for legal aid. They further suggest that successful claimants will be able to recover costs up to a cap of £30,000, bearing in mind that "public resources are not unlimited".
Environmental law firm Client Earth claims these proposals would be unlawful and unfair. They note that the costs protection can be challenged, depending on publicly available information about claimants' finances. They say "we need to look at the whole system, including the provision of legal aid, to ensure that where environmental laws are broken, people can go to court to uphold them".
Click here to view Client Earth's press release.
Click here to view a UK Human Rights Blog piece.