Environmental campaigners win an important victory for access to justice

High Court says changes to cost rules in environmental court cases must be amended

And UN report says UK is “further away” from compliance with Aarhus Convention

October 13th 2017

Environmental campaigners won important concessions at the High Court last month concerning changes to the rules that govern environmental court cases, such as a legal challenge to a public body’s environmental policy. As we discussed in a previous article, the UK Government announced the changes last November and the new rules were introduced in February – see the concluding section ‘Moving the Goalposts: Limiting access to justice’ in ‘Future of EU Nature Directives still uncertain following appointment of new Environment Secretary’. The previous rules, which had been in force since April 2013, set a cap on the costs that a claimant would be liable to pay if they lost a legal challenge in an environmental court case. The costs were set at £5,000 for individuals and £10,000 for charities and non-governmental organisations; the defendant’s costs were also capped at £35,000. [1] The changes to the rules retain these figures as a “default” cap on costs. However, the changes also give judges the ability to increase or decrease the cap on costs at any time during a case, making the costs of mounting a legal challenge uncertain. Claimants bringing environmental cases to court are also obliged to provide more information on their financial circumstances, which could be disclosed to the court. [2]

These changes were challenged by the law firm Leigh Day, acting on behalf of a partnership of three organisations: the RSPB, Friends of the Earth, and environmental lawyers Client Earth. At an initial hearing at the High Court on Wednesday 19th July, David Wolfe QC, representing the three organisations, argued that the new rules did not follow the spirit of the Aarhus Convention, a UN agreement which the UK has signed and is designed to ensure access to justice for environmental cases. Client Earth said: “The UK government must ensure environmental cases are not prohibitively expensive and they must remove or reduce financial and other barriers to access to justice.” [3]

The Aarhus Convention

The full title of what is commonly referred to as the Aarhus Convention is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It was formulated by the United Nations Economic Commission for Europe (UNECE) and adopted at a ministerial conference in June 1998, entering into force in October 2001. The objective of the Convention is stated in Article 1, which says: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party [to the Convention] shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.” [4] The provisions of the Convention cover those three broad areas: access to environmental information; public participation in environmental decision-making; and access to environmental justice.

The right of access to environmental information

On the first (access to environmental information), Article 4 of the Convention gives people the right to receive environmental information held by public authorities. The definition of “environmental information” is itself broad (the definitions are set out in Article 2), and includes information not only on environmental policies or the state of the environment but also on things such as the state of cultural sites and built structures, “inasmuch as they are or may be affected by the state of the elements of the environment” or, through these elements, by factors such as legislation, programmes, or development projects. Public bodies are also obliged to collect and disseminate environmental information, as stipulated in Article 5 of the Convention. [5]

The right to participate in environmental decision-making

On the second (public participation in environmental decision-making), Articles 6, 7 and 8 of the Convention gives everyone the right to participate in environmental decision-making, which include the “preparation of legally binding instruments”. Public authorities must make arrangements to enable non-governmental organisations and the general public to comment on proposals for plans, programmes and projects relating to or affecting the environment, and must take these comments into account in their decision-making. They must also provide information on their final decisions and their reasons.

Access to justice in environmental matters

On the third (access to environmental justice), Article 9 of the Convention gives people the right to challenge decisions made by public bodies when those decisions have not respected the two previous rights or have contravened environmental law in general. Paragraph 1 covers the right of access to a review procedure when requests for information under Article 4 have been denied. Paragraph 2 covers a similar right for those “members of the public concerned” who have a sufficient interest, or alternatively who maintain an impairment of a right, to challenge the legality of a decision (where the “public concerned” is defined as people affected by or likely to be affected by an environmental decision, or people having an interest in such a decision, including non-governmental organisations that promote environmental protection). Paragraph 3 gives members of the public the right of access “to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

The reduction of “financial and other barriers to access to justice”

Paragraphs 4 and 5 of Article 9 are those aspects of the Convention that have featured prominently in the legal challenge. Paragraph 4 includes the statement that the procedures referred to in the previous paragraphs “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive” [6] And Paragraph 5 says: “In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”

Environmental campaigners said that the changes to the cost capping rules, introduced in February, bring uncertainty to the costs of making a legal challenge and will deter claimants pursuing a genuine case, which is contrary to Article 9 of the Aarhus Convention.

House of Lords Scrutiny Committee criticises the rule changes

The legislation that implemented the changes – the Civil Procedure (Amendment) Rules 2017 (SI 2017/95) – was scrutinised by the Secondary Legislation Scrutiny Committee of the House of Lords, which published a report of its findings on 23rd February. [7] A consultation on the changes was held towards the end of 2015. [8] The Committee’s report considers the response to this consultation submitted jointly by the RSPB, Friends of the Earth and Client Earth, and also considers the paperwork accompanying the legislation which the Ministry of Justice provided to explain the changes. Two significant observations emerge. Firstly, the report describes the Government’s intention to discourage “unmeritorious claims which cause unreasonable costs and delays to development projects.” However, the joint submission notes a failure of the Ministry of Justice to provide any evidence that the number of “unmeritorious claims” is a problem. The report continues:

“It provides data which shows that the number of Aarhus cases in 2014–15 was 153 which is on a par with the established average. They also comment that between April 2013 and March 2015, nearly half (an average of 48%) of environmental cases were granted permission to proceed in contrast with 16% of ordinary judicial review cases. Over the same period 24% of the environmental cases were successful for the claimant in contrast with 2% for all cases in 2014. All of which indicates, according to the submission, that environmental cases represent good value for money in comparison with mainstream judicial review cases.”

The second observation concerns the Government’s stated intention of “introducing more of a level playing field so that defendants are not unduly discouraged from challenging a claimant’s entitlement to costs protection.” However, the submission points out that the cap on costs affects only the claimant’s liability to pay the defendant’s costs, while the claimant’s own legal costs are not included. The report says that the Government’s stated intention “may escalate the claimant’s legal costs and act against the intention of the Aarhus Convention that the costs of environmental litigation should not be prohibitive.”

The report concludes that the Ministry of Justice “has not provided a convincing case for changing from the previous standardised system of cost capping, which was well understood, to this more complex system which appears to have significant potential to increase both the costs for public administration and the uncapped litigation costs of the claimant.” It continues:

“While asserting that the changes are to ‘discourage unmeritorious claims’, no figures are presented that illustrate the proportion of Aarhus claims that fall into that category. We are told that the financial impact on the public sector is minimal, so there does not appear to be a significant saving to the tax payer from these changes. Although the Ministry of Justice states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to the consultation and the submission[s] received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts. The Ministry of Justice has not addressed any of these concerns in its paperwork and we therefore draw the matter to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation. We have also written to the Minister to express our concerns over the way that this policy change was presented.”

UN Report: UK has moved “further away” from compliance with the Aarhus Convention

The Government’s changes received another blow on the 28th July when the United Nations Economic Commission for Europe (UNECE) published a report concerning the UK’s compliance with its obligations under the Aarhus Convention, to be submitted to a meeting of the parties to the Convention in September (11th to 13th). The report summarises the findings of the Aarhus Convention Compliance Committee (ACCC), which notes a lack of progress on the part of the UK in meeting its obligations under Article 9 of the Convention. It makes a specific reference to the changes to the cost capping rules, saying that while the 2017 amendments introduced some positive improvements, overall they appear to have moved the UK “further away” from meeting the requirements of the Convention. [9]

The report requests the UK, as a matter of urgency, to take the necessary measures “to ensure that the allocation of costs in all court procedures subject to Article 9 is fair and equitable and not prohibitively expensive.” It also calls on the UK to “further consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice” and “to establish a clear, transparent and consistent framework to implement Article 9, Paragraph 4, of the Convention.” Additional requests include a review of the time scale for bringing judicial review applications in Northern Ireland, and a request to “ensure that in future plans and programmes similar in nature to national renewable energy action plans are submitted to public participation as required by Article 7, in conjunction with the relevant paragraphs of Article 6 of the Convention.” The report also recommends that the UK “ensure that its Civil Procedure Rules regarding costs are applied by its courts so as to ensure compliance with the Convention.”

The Verdict of the High Court

On September 15th, the High Court delivered its verdict on the challenge to the new rules. Introducing the grounds for the challenge, Justice Dove prefaced his comments by describing the provisions of the Aarhus Convention and explaining that the Convention “is an unincorporated International Convention which has no direct effect in domestic law. Legal effect is however conferred upon the treaty to the extent that it has found expression in EU environmental legislation.” [10] Article 6 of the Convention (“public participation in environmental decision-making”) is contained within the EU Environmental Impact Assessment under the EU Directive 2011/92/EU, he said. He went on to explain that “provisions in relation to access to justice are contained both within the Environmental Impact Assessment Directive and the Industrial Emissions Directive in similar terms.” He then quoted Article 11 of the EU Environmental Impact Assessment Directive which essentially transposes extracts from Article 9 of the Aarhus Convention, including the statement on prohibitive costs (Paragraph 4), into EU law.

He then went on to explain that the new cost rules put in place a series of bespoke provisions “designed to give effect to the requirements of the Directives”. However, he continued, the EU Directives only cover those claims that are related to Article 9 Paragraph 1 or Article 9 Paragraph 2 of the Aarhus Convention. This means in fact that the extent of the costs protection under the new rules exceeds that which is required by EU law, because they include judicial review claims that fall within the scope of Article 9 Paragraph 3 of the Aarhus Convention. Justice Dove then described the grounds for the legal challenge, as follows:

“There are three Grounds raised by the claimants. The first Ground is that the provisions of the rules which enable a variation of the costs limits at any point in the litigation are in breach of the requirements of EU law as set out above. The second Ground is that it is unlawful for the 2017 Amendments to fail to provide for private hearings when a claimant or a third party supporter’s financial details may be discussed and examined at such a hearing. The third Ground is that the claimants seek a declaration that in the light of the CJEU jurisprudence [i.e. European Court of Justice case law] the claimant’s own costs of bringing the litigation should necessarily be included within the assessment of the financial resources of the claimant for the purposes of evaluating whether or not costs protection should be afforded and whether or not the proceedings are ‘prohibitively expensive’.” [Para 25]

Justice Dove then considers each ground in turn, beginning with a lengthy analysis of ground one. Speaking for the defendants (i.e. the Secretary of State for Justice and the Lord Chancellor), James Maurici QC argued at the initial hearing that the test of whether or not the purpose of the Directives was to be achieved was not certainty but “reasonable predictability”. Justice Dove accepts that argument in his judgement, but says that an application to vary the costs should be made at an early stage of the proceedings, thus giving “reasonable predictability” of the costs to the claimant. Concluding that stage of the argument, he says he is satisfied that the provisions of the cost rules “in relation to varying the default costs caps is consistent with the applicable EU law when considered in the context of the surrounding procedural rules and practices.” [Para 41]

Moving on to ground two, Justice Dove considers the circumstances in which a claimant’s financial details may be discussed in the course of an environmental court case. He says that the defendant has shown a willingness to amend the new rules to allow for hearings to be heard in private when the claimant is a private individual. The defendant has also said that if the claimant is a charity or a non-governmental organisation, they would only need to disclose aggregate amounts of third party support, which would avoid the necessity of providing information in relation to the size of individual donations. However, Justice Dove says, “it does not directly address the question of the identity of the sources of third party support.” Concerns have been expressed by charities that disclosing the identities of their supporters may deter future support, the result being less funds available to support legal cases and potentially deterring future claims, which would be in breach of the requirements to ensure a wide access to justice. “It follows,” says Justice Dove, “that I am satisfied that the concerns raised by the claimant under Ground 2 are legitimate.” He recommends that if a dispute about costs were to proceed to a hearing, then the rules should provide for that hearing to be held in private in the first instance. This would apply equally whether the claimant were a private individual or a non-governmental organisation. He also recommends that the rules be more specific about the nature and the content of the financial information required. [Para 57]

Moving on to ground three, Justice Dove discusses the question of what is generally held to be “prohibitively expensive” with reference to case law and what has come to be known as the Edwards principles, resulting from a previous decision of the European Court of Justice alluded to above (“the CJEU jurisprudence”). The ‘Edwards principles’ set out the criteria for deciding when costs can be held to be “prohibitively expensive”. In this regard, Justice Dove accepts the argument that the claimant’s own costs should be included in assessments of the claimant’s financial resources for the purposes of evaluating whether or not costs protection should be afforded and whether or not the proceedings are “prohibitively expensive”. [Para 59]

To summarise, Justice Dove accepted the principle that a cap on costs could be varied, but stipulated that this should happen at an early stage of the proceedings to give “reasonable predictability” of the costs to the claimant. On the second and third grounds, he accepted the arguments presented by David Wolfe QC, representing the RSPB, Friends of the Earth, and Client Earth. The changes to the rules will stay in place until the recommended amendments have been made.

“An important victory for access to justice”

The judgement was welcomed by environmental campaigners and by Leigh Day, the law firm representing the three organisations. Speaking for Leigh Day, solicitor Rowan Smith said: “This is a hugely important judgement for anyone who cares about the environment. We have achieved major concessions to the Government’s rules, which make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims. Evidence before the court gave examples of successful legal challenges to protect birds, beavers and air quality, all which may not have been pursued under the new rules but for this landmark ruling.” [11]

In a joint statement, the three groups said: “Today’s verdict is an important victory in the battle for better access to justice in England and Wales. People who bravely stand up for nature by going to court can now do so in the knowledge that, once the costs are fixed, they will not be blindsided by a crippling legal bill they were not expecting and hadn’t budgeted for. Another victory from the hearing is that claimants will no longer have to reveal their private financial details in open court, as any hearing about costs protection limits will now take place in private. The Ministry of Justice must change its rules to include this, so that they are lawful.” [12]

Martin Harper, the RSPB’s Director of Conservation, said the judgement was vital in the light of the UK’s proposed exit from the EU. “Without oversight from EU institutions and with uncertainty of what will replace the European Court of Justice, it is down to UK citizens and organisations to challenge decisions affecting the environment,” he said. “This means that the protection of our air, water, countryside and wildlife will rely upon the courts, so everyone must be able to access them. The government is claiming that judicial review and parliamentary process are sufficient to replace the oversight of the EU. If people and charities are hindered by uncertain court costs, our environment could be at real risk.” [13]

Martin Harper also said that colleagues had attended the meeting of the parties to the Aarhus Convention in September, mentioned above, where “the UK conceded that it must take urgent action to make environmental legal action less expensive and more accessible.” And there was further good news, he said, this time from the House of Lords, where peers debated a motion from Lord Marks QC of Henley-upon-Thames that expressed profound regret at the changes to the costs regime. Martin Harper said the quality of the debate was inspiring, “with persuasive and passionate speeches from numerous Peers including the former RSPB Chief Executive Baroness Young, Baroness Parminter and Lord Pannick QC. The overriding theme was the recognition of the vital role that groups like the RSPB play in defending nature and the environment. The outcome was a defeat for the Government as the vote was carried by 164 votes to 97.” [14]

December Update – High Court orders Government to pay all legal costs

Environmental campaigners have secured a further victory, following a High Court decision to order the Government to pay all of the legal costs incurred by the three organisations, up to a cap of £35,000. The High Court also approved the rule changes which the Government was forced to make as a result of the previous ruling. In the order, issued at the end of November, Justice Dove states:

“I am unable to accept the defendant’s submissions that the claimants’ entitlement to costs should be reduced to 50% or some other figure. Whilst it is correct that in relation to Ground 1 the judgement did not lead directly to a quashing order it was necessary for the court to provide detailed analysis of the appropriate procedures to be followed to ensure compliance with EU law requirements. The claimants’ action in bringing the claim enabled the court to provide authoritative guidance in relation to the lawful approach to cost capping in the context of the changes made to the Civil Procedure Rules allowing for cost caps to be adjusted.” [15]

Speaking for Leigh Day, the law firm representing the RSPB, Friends of the Earth, and Client Earth, solicitor Rowan Smith said: “This order is significant in confirming the merit of the case we brought on behalf of the NGOs. The government had argued the claimants shouldn’t be entitled to their full legal costs. This order confirms the case was won beyond doubt by our clients, and also justifies the claimants’ push for the rule changes following the judgement. This case resulted in significant amendments to the Government’s costs rules, which will ensure better access to environmental justice and will go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.” [16]

The order was welcomed by the NGOs, who said it confirmed the justice of their case. Martin Harper, the RSPB’s Director of Conservation, said: “The judge awarded us our full costs in this case on the basis that such clarity is in everyone’s best interests and the interests of access to justice.” Client Earth’s lawyer Gillian Lobo said: “We brought this case because of the real uncertainty and chilling effect created by the government’s new costs rules for those who have to go to court to protect the environment. By ordering the government to pay the claimants’ full legal costs, the judge has reaffirmed the need for us to bring this case and our victory for access to justice.” [17]

And William Rundle, Friends of the Earth lawyer, said: “In the face of further government protestations the court has made it crystal clear that the claimants were right to bring this case, and so the government should pick up our full legal bill. Our claim has enabled an authoritative and detailed ruling, restricting how these new rules must work to be legal. This is a ‘big win’ for a more inclusive system for environmental cases in England and Wales, otherwise people with less money could have been excluded from accessing justice and clearly that’s wrong.” [18]

Acknowledgement

Photograph: Coat of Arms on the Royal Courts of Justice, London EC4 © Copyright Christine Matthews and licensed for reuse under this Creative Commons Licence.

Notes

[1] The changes were implemented by a statutory instrument, SI 2017 No.95 (L.1), The Civil Procedure (Amendment) Rules 2017, laid before Parliament on 3rd February 2017, which included other changes to Civil Procedure Rules that were unrelated to environmental cases. The legislation is available as a PDF document from: http://www.legislation.gov.uk/uksi/2017/95/pdfs/uksi_20170095_en.pdf. The legislation was accompanied by a memorandum that summarises the changes. See: Explanatory Memorandum to the Civil Procedure (Amendment) Rules 2017, available as a PDF document from: http://www.legislation.gov.uk/uksi/2017/95/pdfs/uksiem_20170095_en_001.pdf. The memorandum summarises the procedural changes to environmental cases as follows:

“The new provisions, like those they replace, start with a cap on the liability of an unsuccessful claimant in such a case to pay the defendant’s costs of £5,000 or £10,000 (depending on whether the claimant is an individual or not), and cross-cap on an unsuccessful defendant’s liability to pay the claimant’s costs of £35,000; but they differ in the following main respects: a) extending beyond judicial reviews to include statutory reviews (in particular planning challenges); b) allowing the court to vary the cap and cross-cap either up or down, provided always that any change does not render the cost of proceedings prohibitively expensive for the claimant (and requiring the change if the cost would be prohibitively expensive for the claimant without it); c) requiring the court, when assessing whether proceedings would be prohibitively expensive if the change is or is not made, to take into account a list of factors which mirrors those set out by the CJEU [Court of Justice of the European Union] in the Edwards case; and d) making specific provision for appeals requiring the court to apply the same principles on appeal as at first instance (as required by the Commission v. United Kingdom case).” [Para 7.5]

The ‘Edwards case’ refers to case law, relating to the criteria for deciding when costs can be held to be “prohibitively expensive”. The memorandum also explains that the Government was obliged to change the rules because of judgements by the European Court of Justice and the UK Supreme Court that the existing rules were not compliant with EU law [Ibid: Para 7.4].

[2] The reasons for the legal challenge are explained by Carol Day, solicitor with the law firm Leigh Day, in an article on Martin Harper’s RSPB blog (Leigh Day represented the three organisations who brought the challenge). See ‘Why the RSPB is contesting government plans to curb environmental legal challenges’, RSPB, 01/03/2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/03/01/government-curbs-environmental-challenges.aspx. See also this article by Client Earth: ‘New UK rules make it harder to bring environmental court cases’, Client Earth, 23/11/2016. Retrieved from: https://www.clientearth.org/new-uk-rules-make-harder-bring-environmental-court-cases/.

[3] ‘New government rules on environmental cases “move financial goalposts”, court hears’, Client Earth, 20/07/2017. Retrieved from: https://www.clientearth.org/new-government-rules-environmental-cases-move-financial-goalposts-court-hears/.

[4] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 1998, United Nations Economic Commission for Europe (UNECE), 25/06/1998. Commonly known as the Aarhus Convention, the full text is available as a PDF document via this link to the UNECE website: https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.

[5] In its introduction to the Aarhus Convention, the EU says (with regard to Articles 4 and 5): “Applicants are entitled to obtain this information within one month of the request and without having to say why they require it. In addition, public authorities are obliged, under the Convention, to actively disseminate environmental information in their possession.” See ‘What is the Aarhus Convention?’ on the European Commission website at http://ec.europa.eu/environment/aarhus/. The Aarhus Convention is an international convention that has been incorporated indirectly into UK domestic law through EU environmental legislation. This includes: Directive 2003/4/EC, which covers public access to environmental information; and Directive 2003/35/EC, which covers public participation in environmental decision-making and also access to justice. Provisions for public participation in environmental decision-making are also included in a number of other environmental directives, such as Directive 2011/92/EU, the EU Environmental Impact Assessment. The European Commission has been a party to the Convention since May 2005, and the ‘Aarhus Regulation’ (EC No. 1367/2006) “addresses the ‘three pillars’ of the Aarhus Convention –access to information, public participation and access to justice in environmental matters –where those are of relevance to EU institutions.” The European Commission also adopted a Notice on Access to Justice in Environmental Matters in April 2017. The EC states: “The notice is a guidance document that clarifies how individuals and their associations can challenge decisions, acts and omissions by public authorities related to EU environmental law before national courts. The notice is based on decisions of the Court of Justice on how national courts should address questions of access to justice related to EU environmental legislation. The scope is limited to access to justice in relation to decisions, acts and omissions by public authorities of the Member States. It does not address environmental litigation between private parties. Nor does it concern the judicial review of acts of the EU institutions.” For the details of this and other relevant legislation, see ‘The EU & the Aarhus Convention: in the EU Member States, in the Community Institutions and Bodies’ on the European Commission website at http://ec.europa.eu/environment/aarhus/legislation.htm.

[6] Ibid: see [4]. The full wording of paragraph 4 is: “In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

[7] ‘Secondary Legislation Scrutiny – Instrument drawn to the special attention of the House: Civil Procedure (Amendment) Rules 2017 (SI 2017/95)’, in House of Lords – Twenty Fifth Report of Session 2016-17, HL Paper 114, 23/02/2017. Retrieved from: https://publications.parliament.uk/pa/ld201617/ldselect/ldsecleg/114/11403.htm.

[8] In its Explanatory Memorandum to the Civil Procedure (Amendment) Rules 2017, Para 8.2, the Ministry of Justice reports on the consultation as follows: “The consultation ‘Costs Protection in Environmental Claims: Proposals to revise the costs capping scheme for eligible environmental cases’ was published on 17 September and closed on 10 December 2015. The Ministry of Justice received 289 responses. Of these, 207 (around 70%) were from individuals. Half of these (103) used a template response prepared by Friends of the Earth and disagreed with the proposals in the consultation, as did the majority of responses received from other individuals. It appears that almost all the responses were received from potential claimants, or those acting on their behalf. The Government had to balance the interests of claimants and defendants (including the Government and its agencies) in the light of case law. A response to the consultation was published on 17 November 2016 (the consultation document and the Government response, together with an impact assessment, are at https://consult.justice.gov.uk/digital-communications/costs-protection-inenvironmental-claims/). In the light of responses received, the Government decided not to proceed with some of the proposals, but concluded that implementing others would ensure compliance with domestic and EU legal obligations.” [Ibid: see Note 1]

[9] ‘Draft decision VI/8k concerning compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention’, United Nations Economic Commission for Europe (UNECE), 28/07/2017. Retrieved from: https://www.unece.org/fileadmin/DAM/env/pp/mop6/Documents_aec/ECE.MP.PP.2017.30_aec.pdf. The ‘positive improvements’ presumably refer to the extension of the cost rules to include statutory reviews of planning decisions (i.e. as well as judicial reviews of decisions made by public authorities), and the specific provisions for appeals (see Note 1). However, the amendments have not addressed the issue of private nuisance claims. The UNECE report says that “by failing to ensure that private nuisance proceedings within the scope of Article 9 Paragraph 3 of the Convention, and for which there is no fully adequate alternative procedure, are not prohibitively expensive, the Party concerned [i.e. the UK] fails to comply with Article 9 Paragraph 4 of the Convention.” The report goes on to recommend “that the Party concerned review its system for allocating costs in private nuisance proceedings within the scope of Article 9 Paragraph 3 of the Convention and undertake practical and legislative measures&hellip to ensure that such procedures, where there is no fully adequate alternative procedure, are not prohibitively expensive.” Those recommendations have yet to be acknowledged, as Client Earth pointed out in ‘New UK rules make it harder to bring environmental court cases’ [Ibid: Note 2]. The expanded definition of an Aarhus claim, they say, “does not extend to the full range of claims that come under Article 9(3). This would include decisions to change land use in a national park, the location of solar energy developments, and private nuisance claims. This means the UK will continue to be in breach of access to justice international obligations.”

The issue of private nuisance claims in relation to the Aarhus Convention has been discussed by the barrister David Hart QC on the UK Human Rights Blog. The protections under the Convention are not limited to public law proceedings, he says. Article 9(3) applies to “acts and omissions by private persons and public authorities which contravene national law relating to the environment,” and Article 9(4) (on prohibitive costs) applies to all such procedures [Ibid: Note 4]. However, says David Hart, “despite those words in Art.9(3), the Government has tried to draw a distinction between public law cases and environmental cases raising private law issues such as in the private law of nuisance. For non-lawyers, a private nuisance is when you get stunk out of your home or driven to complain to the police about next door’s noise or when your neighbour funnels polluted water across your land or sends clouds of dust onto your garden or washing.” He then goes on to illustrate the issues that can arise from such cases by discussing some real-life scenarios, one problem being that private nuisance claims can be prohibitively expensive; therefore, only “the most wealthy people” can afford to initiate proceedings. See ‘Government still ignoring private nuisance claims’, David Hart QC, UK Human Rights Blog, 26/01/2017. Retrieved from: https://ukhumanrightsblog.com/2017/01/26/aarhus-convention-update-government-still-ignoring-private-nuisance-claims/.

[10] England and Wales High Court (Administrative Court) Decisions, EWHC 2309 (Admin), Case No: CO/1011/2017, Royal Courts of Justice, 15/09/2017. The Royal Society for the Protection of Birds, Friends of the Earth Ltd & Client Earth (Claimants) v Secretary of State for Justice & the Lord Chancellor (Defendants). For the full text of the judgement, see the BAILLI website at http://www.bailii.org/ew/cases/EWHC/Admin/2017/2309.html. The quote is from Paragraph 8.

[11] ‘NGOs win legal battle over access to environmental justice’, Leigh Day, 15/09/2017. Retrieved from: https://www.leighday.co.uk/News/News-2017/September-2017/NGOs-win-legal-battle-over-access-to-environmental.

[12] ‘Victory for UK environment as judge says cost rules must change’, Client Earth, 15/09/2017. Retrieved from: https://www.clientearth.org/victory-environment-judge-says-cost-rules-must-change/.

[13] ‘Good news from last Friday: an important victory in the battle for better access to environmental justice’, Martin Harper, RSPB, 21/09/2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/09/21/good-news-from-last-friday-an-important-victory-in-the-battle-for-better-access-to-environmental-justice.aspx.

[14] According to Hansard, the vote was in fact carried by 142 votes for, 97 votes against (not 164 votes for, as suggested). See ‘House of Lords Hansard – Civil Procedure (Amendment) Rules 2017’, 13 September 2017, Volume 783. Motion to Regret. Moved by Lord Marks of Henley-on-Thames. Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee, Session 2016–17. Retrieved from Hansard at: https://hansard.parliament.uk/Lords/2017-09-13/debates/F39F0795-CF5D-47EB-9055-90108FFC5C48/CivilProcedure(Amendment)Rules2017.

[15] ‘High Court approves rule changes and orders government to pay legal costs in NGOs’ access to environmental justice case’, Leigh Day, 04/12/2017. Retrieved from: https://www.leighday.co.uk/News/News-2017/December-2017/High-Court-approves-rule-changes-and-orders-govern. The article provides a legal detail that the 15th September judgement fails to mention in relation to the grounds for the challenge: “The NGOs had challenged the compatibility of the new rules with Article 3(7) of the Public Participation Directive 2003/35/ED, because they failed to provide: (i) at the earliest stage possible, certainty for claimants as to their costs exposure; and (ii) mandatory private hearings into a claimant’s financial resources (including to protect the identity of donors).”

[16] Ibid: Note 15.
[17] Ibid: Note 15.
[18] Ibid: Note 15.

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