Update | Environment: Amendments to the civil procedure rules and the Aarhus Convention

Environmental litigation practitioners will have noticed a significant change in the approach to costs liability in recent years. The standard 'loser pays' rule is no longer the norm for environmental claims as protective costs orders (PCOs) have become common. Amendments to the Civil Procedure Rules in April 2013 should simplify obtaining a PCO in environmental judicial review. However, some notable omissions in drafting and recent cases indicate the interpretation and application of the rules by the court may not be straightforward.

Although the jurisdiction to grant a PCO is found in CPR Pt 3 and the order first became well known in the case of Cornerhouse, the application of PCOs in environmental cases was prompted by the UK's ratification in 2005 of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. As the rather unwieldy full title to the convention indicates, it is concerned with enabling the public to participate fully in decision-making in matters relating to the environment, with the ultimate goal being better environmental protection for all.

Public rights realised

The requirement that each member state that is party to the convention 'guarantee' the rights contained in the convention is a striking one. Member states are not expected to muddle along with merely the aim of compliance, they must ensure that the rights held by the public are fully realised. Although rather innocuous in appearance (and one wonders whether the UK government fully realised the consequences of signing and ratifying the convention back in 2001 and 2005), this is an unusual international treaty in that it has significant consequences for domestic legal and administrative practice.

One of these consequences, now realised in the CPR amendments, is that the convention requires that challenges to decisions, acts or omissions relating to the environment must not be "prohibitively expensive". Following years of uncertainty over PCOs in environmental claims, successful complaints were made to Aarhus Convention Compliance Committee (ACCC) that the decisions by UK courts were not compliant with the convention. Although it was possible to obtain a PCO, it was too uncertain for members of the public to be sufficiently reassured that they would not be put off bringing otherwise meritorious claims. Litigating over PCOs also added enormously (and paradoxically) to the cost of the claim itself. In April of this year, the CJEU handed down its judgment in the case of Case C-260/11 Edwards, which although lacking a certain degree of clarity, upheld an approach to PCOs which is generally favourable to claimants - for example that the criteria for granting a PCO should not change depending on the stage of the proceedings, meaning that if a certain level of costs would be prohibitively expensive in the High Court, that cap cannot then be raised higher if the claim goes on to the Court of Appeal. Having read the writing on the (European) wall, the Ministry of Justice brought in significant reforms to the Civil Procedure Rules on 1 April 2013 which attempt to codify the procedure for obtaining a PCO in environmental claims.

'Aarhus convention claim'

CPR 45.41 provides for an (almost) automatic grant of a PCO limiting the liability of the individual claimant to pay the other side's costs to £5,000 and the defendant's liability to £35,000. The claimant need only indicate in the letter before action and the claim form that it is an 'Aarhus convention claim', and give reasons why it fits this description. Presuming that the defendant does not argue to the contrary, a PCO in those terms will be granted by the court.

If the defendant contests that the claim is an 'Aarhus convention claim' then the court will 'determine that issue at the earliest possible opportunity'. If it is necessary to have a hearing on the issue then if the court finds against the claimant there will normally be no order as to costs for the hearing, if the court finds against the defendant it will be ordered to pay costs on the indemnity basis. These costs will be enforceable regardless of the outcome of the claim and will not be included in the limit on the defendant's costs under the PCO. Clearly the rules intend to discourage defendants from raising spurious arguments that the claim is not an Aarhus convention claim in the hopes of knocking out the PCO and thereby stopping the claim from proceeding.

CPR 45.41(2) defines an Aarhus convention claim as "a claim for judicial review of a decision, act or omission" subject to the provisions of the Aarhus convention. The convention itself does not define the scope of its application although it does require the UK to 'guarantee' rights of access to justice in environmental matters. The UNECE Implementation Guide 2nd ed (2013) explains that in defining the environment one should look to the definition of 'environmental information' under the article 4. That definition is wide. Article 9(2) and 9(4) read together provide that where the claimant "has sufficient standing", challenges to the substantive or procedural legality of any decisions, acts or omissions subject to article 6 of the convention must not be prohibitively expensive. Article 6 refers to decisions to permit operations listed in annex 1 (which correspond to annex 1 of the EIA Directive) or are deemed likely to have significant environmental effects (which together are described domestically as "EIA development"), as well as decisions subject to the Public Participation Directive. A challenge to grant planning permission for EIA development therefore clearly falls within the scope of Aarhus Convention claims. It has often been argued only claims which contain grounds raising points of EU law fall within the scope of the Aarhus convention. The plain reading of the text demonstrates this is not the case.

Non-EIA challenges

But what of challenges to non-EIA development or proposals which the claimant argues should be regarded as EIA development but have been incorrectly screened? Article 9(3) and 9(4) read together provide that challenges to "acts and omissions by private persons and public authorities which contravene provisions of [the member state's] national law relating to the environment" must not be prohibitively expensive. This is a slightly less straightforward criterion, particularly in the context of challenges to grants of planning permission, which due to the domestic principles of public law, rely on breaches of fairness or failure to take into account material considerations rather than an obvious contravention of environmental law per se.

In R (Evans) v Wimbledon & Putney Commons Conservators (CO/3457/2013), the claim concerns whether the conservators have the powers to grant certain easements over the common which would allow the interested party, Wandsworth Council, to build an access road to a proposed school and private dwellings on the site of a derelict hospital. The defendant argued that the claim was not an Aarhus claim because it was a "local highways matter to be taken up with the planning and highways authorities in the usual way and not an environmental issue of general public concern". The interested party argued that the Cornerhouse rules were not satisfied and agreed with the defendant that it was not an Aarhus claim.

John Howell QC, sitting as deputy High Court judge, found the claim was an Aarhus claim and granted a PCO. The judge referred to the article 9(3) criteria of whether the claim contravened 'provisions of national law relating to the environment" and said "for this purpose the decisive issue is whether the provision in question somehow relates to the environment", a quote from the Implementation Guide, p207. The judge noted that the provisions of the 1871 Act protecting the common were "ones that relate to the protection of the environment by preserving the commons in a natural state for public and local use for the purposes of exercise and enjoyment." Article 9(3) was therefore satisfied, triggering the requirement of 'not prohibitively expensive' under article 9(4).

Major deficiencies

If these CPR amendments are to serve the purpose they were intended for, i.e. to fulfil the UK's obligations under the convention and to reduce substantially or eliminate satellite litigation over costs in environmental claims, then liberal approaches such as that of the judge in Evans must be adopted generally by the courts and accepted by defendants. However, there are at least two major deficiencies in the rules as they stand.

First, it should be noted that article 9(3) specifically refers to acts and omissions by 'private persons' as well as public authorities. This means that bringing a civil claim such as nuisance against private commercial operators must not be prohibitively expensive and the claimant should be entitled to a PCO. Unfortunately, this has not been taken into account in the CPR amendments.

Similarly, a narrow reading of the recent CPR amendments is that they do not apply to any claim outside the scope of CPR 54 (judicial review) e.g. planning appeals under s.288 Town & Country Planning Act 1990. As these challenges are conducted on public law grounds and there is no recourse to judicial review following such a decision, there is no clearly principled reason for this exclusion. This does not fit well with the overriding objective in CPR 1(1) and, further, that the UK is still non-compliant with the convention. New communication ACCC/C/2013/86 to the UN refers to the extent and scope of CPR 45.41-44 and is due to be heard in December 2013.

There is a further problem arising from the new rules in that the £5,000 cap on the claimant's liability will still be prohibitively expensive for many individuals. It is possible to apply for a lower cap, but this may then remove the claim from the procedural safeguards of the defendant risking indemnity costs if it opposes the PCO.

The outcome of the above is that obtaining a PCO at least in environmental judicial review should now be easier and cheaper. And while, at first glance, this may seem disadvantageous for defendants, running up costs on satellite litigation was never desirable for either party, nor was it a sensible use of judicial resources. Given the cost consequences of an unjustifiable dispute on whether the claim is an 'Aarhus claim' under the new rules, defendants would be well-advised to pick their battles carefully. As for the UK government, it seems likely that may be further CPR amendments in the light of the recent communications to the UN.