Amendments to the Civil Procedure Rules, which govern the way court cases are conducted in England and Wales, bring into force a new cost-capping regime for litigants in environmental-related judicial review claims.
The new rules, introduced on 1 April, cap the costs recoverable by a defendant from a claimant in such cases at a maximum of £5,000 where a claimant is an individual, and at £10,000 in any other circumstances.
The new regime, which applies to judicial review cases which fall within the scope of the Aarhus Convention - an EU-wide agreement that environmental court procedures should not be prohibitively expensive (see panel) - also caps the costs recoverable by a claimant from a defendant at £35,000.
Previously, claimants concerned about exposure to legal costs in such cases would need to apply on a case-by-case basis to the courts for a protective costs order (PCO). Such orders limit the exposure of claimants to defendants' costs.
But, in a document outlining its proposals for the new regime last year, the Ministry of Justice (MoJ) said that the courts still retain a large amount of discretion around the granting of a PCO. The MoJ said this applied in particular to "the amount of the order and the question of what test should apply in determining the level at which a particular PCO should be set".
Simon Ricketts, head of planning at law firm SJ Berwin, said that only a "minority" of cases have benefited from PCOs. "No more than a third of judicial reviews would previously have benefited from a PCO," he said. "Now, the majority of cases will be taking advantage of this. It changes the status quo quite significantly."
William Upton, a barrister at Six Pump Court chambers, said that under the previous arrangements "there was no guarantee" that a PCO would be granted.
39 Essex Street silk Richard Harwood QC told Planning that the new regime "makes challenges more likely overall". "One of the really big concerns for anyone bringing a challenge - particularly for small groups - was that you were very much running the risk of being crushed by the other side's costs," he said.
Harwood said that, previously, the "large and unknown" cost risk was a "major discouragement". He said the new route would offer claimants "certainty as to their maximum exposure" and could encourage them to "bring proceedings that they would have previously shied away from".
Ricketts said it is "not unreasonable to expect that there will be a material increase" in the number of judicial reviews as a result of the new regime. "Potential exposure to costs is often a major influencing factor for people deciding whether or not to embark on a judicial review," he said.
However, Upton said that while the new regime is a step forward for people who might have previously been "put off by large costs potential", claimants would still face "quite a challenge" to fund their own costs.
Last year, Prime Minister David Cameron said that the government wanted to cut the number of judicial reviews, claiming they were hampering economic growth and that many applications were "completely pointless".
In December, the MoJ revealed plans to cut the period in which objectors can apply for a judicial review in planning-related cases from three months to six weeks.
Jake White, legal adviser for charity Friends of the Earth, said that there is a "strong tension" between the new cost-capping regime and the MoJ's plans to clamp down on planning-related judicial reviews.
"We find the direction of travel very odd, if not to say contradictory," White said.
THE NEW COST-CAPPING REGIME: A PRIMER
Q: Why have the new rules been introduced?
A: The government is a signatory to the 1998 Aarhus Convention, which specifies that environment-related court proceedings should not be "prohibitively expensive". But in 2010, Brussels issued an opinion that the current rules on costs for environmental challenges are not compliant with the EU directive which implemented the convention.
Q: What type of cases will the new regime apply to?
A: The new cost-capping regime will apply to cases falling within the ambit of the Aarhus Convention. It requires parties to ensure the public have access to a procedure to challenge decisions subject to the public participation procedures and contraventions of national law relating to the environment. In England and Wales, the main mechanism for challenge is judicial review.
Q: What are the new cost caps and who do they apply to?
A: The costs recoverable by defendants from claimants will be capped at £5,000 where the claimant is an individual and at £10,000 in all other circumstances. Where a defendant is ordered to pay costs, the cap is £35,000.
