Amendments to the civil procedure rules fail to give proper effect to provisions in the Aarhus convention on guaranteed access to justice in environmental cases, says Adrienne Copithorne
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.
<…>
Adrienne Copithorne is an associate solicitor at Richard Buxton Environmental and Public Law (
).
