Both EU law and the Aarhus Convention oblige Member States and contracting Parties to ensure that environmental legal proceedings are ‘not prohibitively expensive’ 3. This means that ordinary citizens and civil society groups should be able to afford to go to court and challenge the decisions of public and private bodies that threaten the environment.
The European Court held that domestic courts cannot look exclusively at the financial means of individual claimants but must also carry out an objective analysis of the amount of the costs. In deciding whether a figure would be “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.
Carol Day, solicitor at WWF and CAJE Coordinator said: "For far too long, legal action to protect the environment has been confined to either the very rich or the very poor, with the vast majority of concerned citizens powerless to challenge the decisions of public bodies. The judgment confirms that the Government must ensure the public at large can exercise their democratic right to go to court”.
Ralph Smyth, barrister at the Campaign to Protect Rural England said: "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."
Jake White, legal adviser at Friends of the Earth said: “The judgment marks 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. Whilst that campaign is not yet won, this judgment nonetheless sends a message to governments across the EU that costs may not prevent people gaining access to the courts in these cases.”
Environmental groups in the UK have long argued that current court rules make access to justice unaffordable for people and groups who want to use the law to protect the environment 4. Until now, individuals and groups who take their case to the Courts have not been able to rule out the possibility that they will be ordered to pay tens of thousands of pounds to the other side - usually the Government - if they lose.
Research by the European Commission has also shown that the UK has one of the worst cost regimes for access to justice in environmental matters, and that the current costs rules represent a significant obstacle to access to justice in the United Kingdom 5.
Recent improvements to the costs rules for environmental cases in England and Wales which came into force on 1 April this year 6 do not go far enough. Proposals to cap the costs that individuals and environmental groups would have to pay to public bodies if they lose judicial reviews are too high and a cross-cap (which limits the amount that successful claimants are able to recover) will make it very difficult for individuals and civil society groups to find lawyers to represent them in environmental cases 7.
In the judgment, the European Court has taken further steps towards ensuring that the risk of paying your opponent’s costs no longer poses a substantial obstacle to environmental justice. The decision may mean yet further changes are required to the new rules the government has just introduced.
The judgment also suggests that the European Court will take a robust line against the UK in the forthcoming infraction proceedings arising from a complaint lodged by the Coalition for Access to Justice for the Environment (CAJE) 8 in 2005 9.
