RSPB, ClientEarth and FoE launch judicial review of Ministry of Justice’s change to costs cap already criticised by UN and peers
Legal challenges to government air pollution standards or to the expansion of Heathrow airport have become too risky financially to pursue under new court regulations, environmental groups are warning.
Changes to cost protection orders brought in by the Ministry of Justice from Tuesday will expose campaign groups to prohibitive costs running into potentially millions of pounds, and deter them from bringing important cases, it is claimed.
In an attempt to overturn the MoJ rules, ClientEarth, Friends of the Earth and the RSPB have launched a judicial review challenge of the decision by the justice secretary, Liz Truss, to introduce the restrictions. The case will be heard in the coming months.
The environmental organisations say that they will face significantly larger liabilities and that judges will be able to increase the costs cap at any stage, making it impossible to know how much money a case will incur from the start.
“Charities and NGOs are the main way people can mount an effective challenge to government decisions,” said ClientEarth, Friends of the Earth and the RSPB in a joint statement. “We represent lots of concerned individuals who have chosen to pool their resources with us so we can defend nature on their behalf. We are an alliance of thousands of individual citizens who would otherwise lack the means and resources to take an issue to court. Access to justice, on equal terms, is everyone’s right.”
Last week, the House of Lords statutory instruments committee, which reviewed the rules, concluded: “Although the MoJ states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts.”
ClientEarth said, that under the new protective cost cap regime, it would not have been able to bring its successful challenge against the UK government over air pollution.
Under the old rules the costs for anyone losing an environmental challenge were capped at £5,000 for individuals and £10,000 in all other cases. Under the new rules claimants will have to provide the court with detailed information about their personal finances when applying for judicial review.
That information on finances, it is said, can be used by the court or the defendant to argue that the costs cap can be raised, or even removed altogether, at any stage in the proceedings. This, according to ClientEarth, makes it impossible for people to know how much a case will cost from the start and could force them to withdraw proceedings – but not before being exposed to very high costs.
The cost changes have been criticised by a UN committee, charged with reviewing access to the courts in the UK, in a report released last week which said the government was not yet meeting its legal obligations on access to justice under the Aarhus convention.
An MoJ spokesperson said: “The cost of bringing environmental challenges must not be prohibitively expensive, and our changes will ensure that individuals are not expected to pay legal costs above their means. Legal aid remains available for these cases.”
