Back to the drawing board on protective costs orders

While their legal aid brethren were plotting the next steps in their battle against Chris Grayling's funding cuts, access to justice campaigners scored a quiet but potentially far-reaching victory in court yesterday.

Civil procedure rules on protective costs orders and cross-undertakings were illegal under the EU's environmental protection rules, the European Court of Justice found.

The case followed a complaint to the European Commission three years ago that the lack of certainty over the availability of protective costs orders discouraged claimants from bringing cases. The fears that they may be lumbered with a large legal bill ran against the requirement in the Aarhus convention on access to environmental information and its implementing directive that access to courts and legal remedies should not be "prohibitively expensive".

In response, the government argued that while there were no statutory provisions allowing claimants to ascertain "with certainty and precision" whether they would be granted a PCO - which would cap their costs liability should they lose - the courts were under a duty to make "just" decisions.

In most cases where the claimant was an individual or an environmental charity bringing a claim against a public body, it said, judges were aware of the inequality of arms and usually took this into account when considering applications for PCOs.

The European judges accepted that established judicial practice could be an acceptable alternative to statutory provisions but in this case, they said, there was just no evidence that it was consistent enough to meet the requirements in the directive. Rules on cross-undertakings could similarly act as a disincentive.

The immediate consequence of the case should be an amendment to CPR 45, which was amended in 2012 - while the case was under way - but still does not appear to give full effect to the directive. This should set out in the clearest terms the criteria judges will consider in PCO applications in environmental cases.

This will be welcomed by environmental campaigners. Undoubtedly it will also prompt further Euro-bashing in some quarters. But it should also be welcomed by others fighting for access to justice.

The specific rules relied on in this case stem from the wider policy that environmental protection is a matter of important public interest. But they also reflect the wider EU requirement that rights derived from European treaties and directives must be adequately protected, that there should be remedies available where they are breached, and that claimants should have unfettered access to an independent court or tribunal.

These days, this covers more and more everyday individual rights. At a time of reduced legal aid and further threats to judicial review, this ruling ought to have particular resonance with judges. Better still, perhaps rules governing protective costs order should all be redrawn to provide the same level of certainty for all applicants.

Jean-Yves Gilg is editor of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk

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