The cost associated with UK environmental litigation is a hot topic at the moment. A recent case has added to the debate.

On 24 February 2005, the UK ratified the UNECE Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.

One of the fundamental principles of the Convention is that the cost of obtaining justice in relation to environmental matters should not be prohibitively expensive.

The UK Government is coming under pressure from a number of sources at the moment to be Aarhus compliant, including pressure from the UK courts, international pressure from the Aarhus Compliance Committee and the European Commission, and domestic pressure from Lord Justice Jackson's "Review of Civil Litigation Costs".

In the recent case of R (Garner) v Elmbridge Borough Council (29 July 2010), the Court of Appeal had to consider Convention-related costs issues.

The case dealt with Protective Costs Orders ("PCOs"). In public law proceedings, a PCO can be granted at an early stage to limit the claimant's exposure to the other parties' costs regardless of the outcome. The aim is to limit the financial burden on members of the public who apply to the courts and so preserve their access to a judicial process.

In R (on the application of Corner House) v Secretary of State for Trade and Industry, it was established that the court may make a PCO if it is satisfied that:

  • the issues raised are of general public importance;
  • the public interest requires that those issues should be resolved;
  • the applicant has no private interest in the outcome of the case;
  • having regard to the financial resources of the applicant and the respondent, and to the amount of costs that are likely to be involved it is fair and just to make the order; and
  • if the order were not made, the applicant would probably discontinue the proceedings and would be acting reasonably in so doing.

In the Garner case, the Court of Appeal considered how the principles of the Corner House case on making PCOs in civil litigation interact with the Environmental Impact Assessment Directive (85/337/EEC) (EIA Directive). In particular, the Court of Appeal considered the interaction with Article 10A of the EIA Directive, which implements the Aarhus Convention by requiring that costs of environmental proceedings that challenge decisions within the scope of the EIA Directive in member states should not be prohibitively expensive.

The Court of Appeal held that:

  • The Corner House requirements (specifically the requirement that issues raised are of general public importance) should be modified in cases where the EIA Directive applies to ensure compliance with that Directive.
  • It was not consistent with the aims of the EIA Directive to apply a purely subjective test to whether proceedings were prohibitively expensive.
  • A PCO should be granted limiting the claimant's costs liability. A reciprocal limit should also be placed on the costs liability of the Council. The reciprocal arrangement was not thought to be inconsistent with the requirements of the EIA Directive.

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