Protective costs orders in environmental cases

Since the UK ratified the Aarhus Convention in February 2005, the protective costs order (PCO) regime has been the vehicle for seeking to provide access to justice which is ‘not prohibitively expensive’ (as required by article 9(4) of Aarhus) in environmental matters.

The established Corner House criteria for granting a PCO will often fail to address ‘prohibitive expense’ in an environmental case, as Corner House limits PCOs to cases where the issues are of general public importance and the public interest requires that those issues are resolved.

Public interest

Where Aarhus is rendered directly effective by an EU directive which reproduces its provisions (for example, the Environmental Assessment and Integrated Pollution Control Directives), the Court of Appeal held in R (on the application of Garner) v Elmbridge BC [2011] that the 'public interest' criteria would automatically be satisfied.

However, there will be a whole host of ‘environmental’ cases which fall within the scope of Aarhus but are not covered by a relevant directive, where the environmental issue will be only local: see, for example, Dullingham Parish Council v East Cambridgeshire DC [2010]. Thus, the PCO regime does not enable access to the courts for all claimants who wish to bring environmental challenges without prohibitive expense.

On 24 August 2011, the Aarhus Compliance Committee found that the UK’s regime for costs in environmental cases was not compliant with Aarhus. In response, the Ministry of Justice instigated amendments to the Civil Procedure Rules (CPR) in 2013 to provide for costs protection on demand in judicial reviews which are within the scope of the Aarhus Convention (rules 45.41 to 45.43 of the CPR). The rules are limited to judicial review proceedings, and do not encompass applications to the High Court under the Planning Acts or civil proceedings, such as nuisance claims.

The Court of Appeal recently affirmed in Secretary of State and Local Government v Venn [2014] that, as Aarhus is not directly effective (in the absence of a relevant EU directive), and has not been incorporated into UK domestic law, there is no adjustment to the Corner House principles in environmental cases which are not brought by judicial review or subject to a relevant EU directive (at paragraph 32). Thus, claimants still need to show that all the Corner House criteria are met, with the exception of the lack of private interest, as it will often be impossible to obtain a PCO where the claimant must be a ‘person aggrieved’ by the decision under challenge (Austin v Miller [2014] at paragraphs 40 to 44).

In breach

Lord Justice Sullivan accepted in Venn that this leaves the UK in breach of Aarhus, but concluded that it would not be appropriate to exercise a judicial discretion so as to sidestep the limitation to applications for judicial review deliberately imposed in the CPR. He directed strong words to the legislature that: “It is now clear that the costs protection regime introduced by CPR 45.41 is not Aarhus compliant insofar as it is confined to applications for judicial review, and excludes statutory appeals and applications” (at paragraph 34).

The government is in the process of reviewing the current costs regime in environmental cases, and thus further changes are likely to be forthcoming. In the meantime, however, litigants embarking on an environmental challenge need to be aware that costs protection depends not on the nature of the environmental decision or the legal principles upon which it may be challenged, but on the identity of the decision-maker and the corresponding procedure by which the case must be brought. SJ

Annabel Graham Paul is a barrister practising from Francis Taylor Building