A new judgment from the European Court of Justice (ECJ) brings welcome certainty to people and environmental groups seeking to use the law to protect the environment. For many years, individuals and civil society groups have been reluctant to challenge public bodies in the courts for fear of facing a large bill for legal costs if they lose.

• You can read the judgment HERE.
• Jake White, legal adviser at Friends of the Earth said the judgment marked ‘a significant step forward in the campaign to ensure that people are not prevented from obtaining justice in environmental cases purely on the grounds of cost’.

‘The Government says it wants local people to have a say in planning decisions. Yet, increasingly, due to weaknesses in national planning policy, these decisions are likely to be subject to legal challenge. The debacle over the new housing blocks that tower over ancient Port Meadow shows that without an effective remedy when things go wrong, having a say isn’t worth much. Today’s judgment should mean people can without huge financial risk challenge planning decisions that go wrong.’
Ralph Smyth, barrister at the Campaign to Protect Rural England

In the UK, the ‘loser pays rule’ means that successful claimants can claim their legal costs back from the defendant – but the converse is that if you lose, you not only have to pay your own legal costs, you have to pay those of the winning side as well. And that can be a lot of money.

In a previous case concerning the construction of a funicular railway up Cairngorm Mountain in Scotland, WWF was ordered to pay the Government’s legal costs of over £200,000 on losing its case at first instance. The ECJ looked at (Edwards), concerned local resident Mrs Lilian Pallikaropoulos who faced a costs bill of just under £90,000 for seeking to challenge the legality of a large cement works near her home in Rugby, Warwickshire. It is no surprise therefore that many people have been dissuaded from bringing good, arguable cases to the courts – this is often referred to as the ‘chilling effect’ of legal costs.

Prohibitive expense
Then came a new UN environmental instrument called the Aarhus Convention, named after a little-known city in Denmark in which it was agreed. The Convention, which was ratified by the UK Government in 2005, requires contracting Parties to ensure that legal action to protect the environment is ‘fair, equitable, timely and not prohibitively expensive’. This wording was subsequently imported into an EC Directive (the Public Participation Directive), requiring all EU Member States to ensure their legal systems are compatible with those requirements.

The trouble is, it was never clear what ‘prohibitive expense’ actually means. Does it mean prohibitively expensive for most people of modest means who are keen to protect their local environment – but who don’t have tens of thousands of pounds stashed away for the odd court case? Or should the court look at the assets of each individual and see what they can afford?

In the first situation, everyone is assumed to be broadly the same (i.e. it is an objective judgment), for which costs liability can be set at a pre-determined, modest level – thus guaranteeing certainty to claimants before they go to court. In the latter scenario, which is essentially a subjective judgment, people and civil society groups are unlikely to know what liability they face until their assets are valued at the end of their case.

WWF has always maintained that the correct approach is an objective judgment, mainly because the court can give people requisite certainty about their financial liability when embarking on a case. Most people bringing such cases do so in the belief that the environment is a common asset that must be protected not just for themselves, but for society as a whole, and future generations. Few, if any, claimants bring such cases with any intention of financial gain – they do so in the public interest and at great personal, financial risk.

In preparation for this case, the UK Government amended the law to ensure that, as of 1st April 2013, individuals bringing environmental Judicial Reviews would pay a maximum of £5,000 of the legal costs of a public body on losing a case. Groups (which would include environmental NGOs) would have to pay no more than £10,000. The figures aren’t perfect by any means, but the changes were a welcome step forward – and they do reflect the objective approach to prohibitive expense favoured by WWF and the Coalition for Access to Justice for the Environment (CAJE).

In Edwards, the UK Supreme Court asked the European Court to explain what prohibitive expense means. In the judgment, the Court has held that domestic courts cannot look exclusively at the financial means of individual claimants (as the Supreme Court did in Edwards) but must carry out an objective analysis of the amount of the costs.

In deciding whether a figure is ‘objectively unreasonable’, the court must take a number of other factors into account, including whether the claimant has reasonable prospects of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and whether public funding or other costs protection schemes are available.

WWF would argue that the above figures (£5,000 and £10,000 for individuals and groups respectively) do exceed what might be viewed as objectively unreasonable and that there must be the possibility of arguing them down in certain situations. What is clear, however, is that they should not be increased. In truth, the battle is not over – but we are another step on the road to justice.