The ECJ found the UK to be in breach of its Aarhus Convention obligation to protect the public from excessive costs in environmental cases, European Commission v UK (Case C-530/11). The court held that merely giving judges discretionary powers to cap costs using protective costs orders does not provide sufficient certainty to potential claimants to comply with the Convention.
Under Aarhus, which was ratified by the European Union in 2005, member states must ensure that the cost of bringing proceedings in environmental cases is not prohibitively expensive.
Environmental lawyer Carol Day, a member of CAJE (Coalition for Access to Justice for the Environment) said CAJE representatives will meet with Defra in mid-March to go through the judgment in detail.
While the ECJ looked at protective costs orders, it did not specifically consider new costs limits introduced in April 2013 for judicial reviews, under which individuals in environmental cases only have to pay up to £5,000 (and NGOs up to £10,000) of the defendant’s costs, and can only claim back £35,000.
However, Day, formerly of the WWF and now a consultant with Leigh Day as well as the RSPB, said the judgment gave “as definitive a picture as we are going to get”.
The decision means that “certainty is everything”, Day said – individuals must have absolute clarity about what their costs will be.
It also introduces a mixture of subjective and objective when considering the test of ‘prohibitively expensive’, in that national courts must look at the circumstances of the individual concerned to decide whether it is affordable for them.
The ECJ decision also prevents courts from deciding that a case could not have been prohibitively expensive because the claimant managed to bring the case, and clarifies that the £5,000 limit is a one-off payment not a sum that should be paid at each appeal stage, Day said.
‘The government may need to issue a Practice Direction or, even better, legislate to make it explicit that judges may need to cap costs below the £5,000 threshold where the individual cannot afford it, and may need to increase the cross-cap of £35,000 where necessary in individual cases,’ she said.
‘It was also interesting that the Advocate-General’s Opinion said she felt the fact NGOs can’t apply for legal aid fell foul of the “prohibitively expensive” test, but this wasn’t mentioned in the final judgment. I think the government needs to consider whether NGOs under a certain size should be included.’
The ECJ also confirmed that people seeking an injunction should not be asked to make a cross-undertaking – where the claimant must lodge a bond or security for any profits lost be the defendant as a result of the legal action.
The judgment was widely heralded as ‘significant’ for UK access to justice.
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