More changes on the horizon?

Costs in judicial review claims have long been subject to special treatment. The potential public interest in such proceedings ?has led the courts to grant ?costs protection in some circumstances. Costs in environmental judicial review have been subject to a further degree of special treatment ?due to the requirements of ?the Aarhus Convention, a UN convention on environmental matters to which the UK is a signatory.

A new government consultation on the environmental costs protection regime proposes significant changes to the current situation. It is the latest instalment in ?the long-running saga of the domestic costs system’s ?attempt to accommodate the requirements of the convention, and will be of interest to all those involved with environmental and planning public law challenges.

The rules on environmental costs protection are contained ?in part 45 of the Civil Procedure Rules (CPR). The Criminal Courts and Justice Act 2015 creates a new codified regime for costs capping in judicial review generally – although the relevant provisions have yet ?to be brought into force, and ?in any event there is power to disapply them in relation to environmental cases. The current consultation, which ends on ?10 December 2015, proposes ?to keep the environmental ?costs protection regime within part 45 of the CPR, but with several notable changes.

Proposed changes

First, changes are proposed ?to the level of costs protection. Currently, individual claimants benefit from a costs cap of £5,000 on the amount they are liable ?to pay to a defendant. The cap ?for other claimants is £10,000, and there is a reciprocal cap for defendants of £35,000. The consultation suggests changing these levels to £10,000 for individual claimants, £20,000 for other claimants, and £25,000 for other defendants, in an apparent attempt to level the playing field.

Second, it is proposed that the costs caps could operate more flexibly, with either party able ?to apply to vary their own or the other party’s cap. In deciding whether to depart from the default caps, the court would assess whether the proceedings would be ‘prohibitively expensive’. Claimants would be required to serve with their claim form a schedule of their financial resources, which would provide the evidence for the court to embark on this assessment. ?The schedule would have to be verified by a statement of truth and defendants would have access to it.

Third, it is proposed to apply the costs protection regime to additional types of proceedings. Currently, only judicial review claims engaging the Aarhus Convention are covered. Statutory appeals and applications, such as under sections 288 and 289 of the Town and Country Planning Act 1990 (which include, for example, challenges to decisions of planning inspectors), are not covered, something which led the Court of Appeal to describe the current regime as ‘systemically flawed’ (Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539). The consultation paper recognises that statutory appeals and applications perform a role that judicial review would otherwise fulfil, and hence it is proposed that costs protection is extended to some (but not all) statutory challenges.

Other important changes are also proposed, in particular limiting costs protection to ‘members of the public’, which would appear to be an attempt ?to exclude public bodies such ?as local authorities, and only granting costs protection after permission to bring judicial review has been given.

Complex proceedings

If the changes materialise, they will require significant attention from practitioners. The proposed changes rebalance the system to enable more account to be taken of the differing circumstances of litigants. In doing so, however, the changes introduce complexity and roll it out across more types of proceedings. 

Complexity arises in particular from the proposed power to depart from the default cap ?by reference to a claimant’s resources, with the potential for satellite costs litigation, to which the courts have traditionally ?been hostile. Such litigation will need to be carefully managed if ?it is not to counteract the recent streamlining of environmental High Court challenges, in particular through the shortening of time limits and the creation of the Planning Court. 

Advisers to claimants will face the additional requirement of producing the schedule of resources in the tight judicial review time limits, and both sides will face tactical decisions as to whether to challenge the default caps. In short, specialist procedural knowledge in environmental challenges will become even more invaluable.

Hugh Flanagan is a barrister practising from Francis Taylor Building @FTB_lawwww.ftb.eu.com