The law of holes dictates that if you find yourself in one, stop digging. Yet finding itself in a pit of non-compliance with the Aarhus Convention, the Northern Ireland Department of Justice appeared to be revving up the excavator.
The DOJ’s February ‘Costs Protection in Environmental Cases’ consultation proposed some profoundly regressive changes to rules in Northern Ireland covering ‘costs capping’ in environmental cases. These would have deepened NI’s non-compliance with the Aarhus Convention, breached EU law and reduced access to justice (see NI Environment Link’s incisive response; and my own).
Following robust engagement by civil society, a number of the offending proposals have been withdrawn and the DOJ will be progressing changes which may facilitate access to environmental justice in NI.
A. Background: why cap costs?
The Aarhus Convention aims to protect:
… the right of every person of present and future generations to live in an environment adequate to his or her health and well-being…
It does this by promoting participatory, deliberative environmental citizenship. Signatories must give the public rights of access to environmental information, participation in environmental decision-making and access to justice in environmental matters.
All parts of the UK have had difficulty implementing the Convention’s Article 9(4) requirement that access to environmental justice not be “prohibitively expensive”. The Aarhus Convention Compliance Committee found the UK non-compliant in October 2015.
To reduce costs, NI has a ‘Protective Costs Orders’ (PCO) system. Successful applicants have liability for their opponent’s costs capped at £5,000 for individuals or £10,000 for other applicants (e.g. NGOs). A ‘cross-cap’ is also created whereby the opponent (e.g. the State) faces only £35,000 of liability for the applicant’s costs if the applicant wins.
The PCO system is problematic. PCOs do not necessarily make litigation affordable, but allow litigants to plan – offering costs predictability which insulates from the ‘chilling effect’ of open liability.
The importance of affordable access to environmental justice is acute in NI, where the right to a clean and healthy environment is threatened by a ‘systemic failure’ in environmental governance. Environmental laws are routinely left unenforced, and breaches left unchallenged. ‘Public interest’ environmental litigation is critical to enforcing hard-won environmental laws.
B. The proposals: what fresh hell is this?
NI’s proposals to change PCO rules appeared copied and pasted from a slightly earlier consultation from England and Wales in late 2015. A number of proposals were suggested by the DOJ, including:
- ‘Hybrid’ costs caps. These would set ‘default’ costs caps (with some suggestion that the default levels would rise), and provide that either party could apply (at any stage) to vary caps levels or remove them. This would reduce certainty for claimants’ costs liability and create an opportunity for ‘satellite litigation’ over costs levels.
- Mandatory disclosure of claimants’ financial details. Disclosing such sensitive information would deter PCO applications. There were unaddressed data protection and privacy issues, and no other UK civil proceedings have the same requirement.
- Changing the costs of challenging PCOs from an ‘indemnity’ to a ‘standard’ basis. This would create more favourable conditions for challenging PCO awards - encouraging more challenges and adding extra costs and uncertainty for claimants.
Individually, these proposals were poorly considered and badly evidenced; cumulatively – an attack on access to justice.
C. Outcome of the consultation
Thankfully, the consultation provoked several strong responses; the DOJ acknowledged a:
…widespread opposition amongst respondents to the proposals made and a general consensus that they were a retrograde step in terms of the protection offered to environmental litigants…
The outcome appears to be an about-turn, whereby most of the dubious proposals have been withdrawn and some suggested which may improve access to environmental justice, including:
- PCO applicants will be able to apply to the courts for their caps to be reduced, and the respondent’s cap to be increased – if the default limits would make proceedings prohibitively expensive. The proposal for allowing respondents to also apply to vary the caps has been dropped. This will allow applicants to apply to have their liability reduced below the default limits, and increase applicants’ ability to recover their own costs from respondents;
- The proposal for mandatory disclosure of applicants’ financial details has been dropped;
- Unsuccessful challenges to the status of Aarhus cases will continue on an indemnity basis (the proposal to change this to a standard basis has been dropped);
D. Some reflections – well done DOJ?
The DOJ – and new Minister Claire Sugden – deserve praise for listening to the consultees. However, regulations will be needed to implement the changes, the details of which will require vigilance. The debate on access to environmental justice in NI will continue once this process is completed.
Finally, one critical question remains what is actually needed to facilitate affordable access to environmental justice in NI? The proposals in this consultation are not enough. PCOs are inadequate. There are lessons from other jurisdictions – starting points would be legal aid, specialist environmental courts/tribunals and ‘One Way Costs Shifting’.