Feedback challenges government bid over legal costs cap

Feedback, a prominent campaign group, is set to contest the government’s bid to remove the legal costs cap in its challenge to the UK-Australia trade deal. The hearing is scheduled to take place at the Court of Appeal in London on 7 March 2025. Feedback argues that if the government’s appeal is upheld, it could reduce the scope of the Aarhus Convention in other cases, potentially hindering future environmental legal challenges. The Aarhus Convention provides special international law protections for environmental challenges, including limiting the cost liability for the group bringing a challenge, to prevent claims from becoming prohibitively expensive.

The government argues that Feedback’s judicial review should not be covered by the £10,000 costs cap available to environmental cases involving NGOs, as it contends that Feedback’s challenge is not an environmental issue. Feedback, represented by law firm Leigh Day, launched the legal claim in 2023 and was granted the costs protection in June 2024. The group argues that the UK-Australia Free Trade Agreement, signed in 2023, would harm British producers of beef, lamb, mutton, and dairy by allowing lower quality meat from Australia to enter the UK market. It also claims that Australian meat production has lower environmental standards, with a higher emissions intensity and a larger deforestation footprint than UK-produced meat.

Feedback further asserts that the government failed to consider the UK’s obligations under the UN Framework Convention on Climate Change when signing the trade deal. The group’s stance is supported by written submissions from the World Wide Fund for Nature (WWF), which was granted permission to intervene in the appeal last week. WWF’s submissions are based on their experience with international processes concerning access to justice in environmental matters.

In July 2024, the government filed an appeal against the judge’s decision to grant Feedback cost protection, arguing that the Aarhus costs cap should not apply to this claim. If the appeal is successful, Feedback may have to withdraw its case due to the prohibitive costs. The group now aims to convince the Court of Appeal that if the government’s appeal succeeds, it will reduce the scope of claims protected by the cap, which could put the UK in breach of the Aarhus Convention. The convention, signed by the UK in 1998, was designed to ensure better access to environmental justice and information for the public, as well as encourage participation in environmental decision-making.

In 2013, cost caps for legal cases concerning environmental matters were introduced under the Aarhus Convention to support public access to environmental justice, preventing financial barriers for claimants with limited resources. Feedback’s executive director, Carina Millstone, expressed concern over the government’s actions. “It’s deeply worrying that the new government is persisting with its predecessor’s attempt to block our scrutiny of the UK-Australia trade deal on environmental grounds. This is a huge waste of time, energy and money, and a clear sign that the government has no intention of breaking with the damaging policies of the last Conservative government when it comes to the environment and climate.”

Millstone added, “If we lose and the cost cap is removed, it’s very unlikely we will be able to move forward with our judicial review despite its importance and validity. It’s disappointing that we’re having to fight this in court and that the new government is hellbent on suppressing access to environmental justice.”

Carol Day (pictured), environment solicitor at Leigh Day, noted, “The result of this appeal is not only relevant for Feedback’s case, but could also have an impact on future environmental cases seeking costs cap protection under the Aarhus Convention. These caps were brought in to support the public’s access to environmental justice, stopping funding from becoming a prohibitive factor in bringing forward a claim. Our client is concerned that the government’s appeal over costs on this case could have wider ramifications by potentially reducing the scope for environmental claims to be protected by the costs cap.”