These proposed changes, if implemented, would push environmental justice out of reach of the majority of people in the UK. This means that communities could be faced with a Government decision which would be highly damaging to their local environment, yet have no way to challenge the decision because they couldn’t afford to take the financial risk.
The deadline for comments is Thursday 10th December. For how to submit your comments, see the end of this document.
You have two choices on how to proceed with responding to this consultation.
1 Download and follow the Friends of the Earth guidelines.
Please click on the link below, which will open a PDF prepared by the legal team at Friends of the Earth. This will provide clear guidelines on the issues and what points to raise when you answer each question.
2 Follow the guidelines provided by Leigh Day below.
Leigh Day are one of the UK’s leading environmental law firms and have been involved in many high-profile Judicial Review cases. These guidelines have been prepared by Carol Day, which we pass on with thanks and without any editing on our part.
On 17th September 2015, the Ministry of Justice launched a 12-week consultation on amendments to the current costs regime covering environmental Judicial Reviews:
Judicial Review is the process whereby individuals, community groups and environmental NGOs can challenge the decisions of public bodies in the courts. It is often the last mechanism for people to ensure that proposals are lawful. Many cases raise issues of wide public interest and strategic importance, including the lawfulness of additional runway capacity at Heathrow, the development of HS2 and proposals to pursue fracking (such as the challenge at Balcombe).
What is the consultation about?
The Government is concerned that objectors and campaigning groups are abusing the process of Judicial Review, by delaying proposals and taking weak cases. They are therefore proposing a number of amendments to the costs rules to make it very difficult for individuals, community groups and even environmental NGOs to pursue Judicial Review in the interests of environmental protection.
The current costs regime
Following more than a decade of domestic and international scrutiny, the Ministry of Justice introduced bespoke costs rules for environmental cases in 2013 to comply with EU law and a UNECE instrument called the Aarhus Convention. The current rules are simple and clear, providing many claimants with access to environmental justice for the first time in years and enabling cases to progress swiftly through the courts.
Environmental JRs are currently defined very broadly, so if a case impacts on the environment in any way, it is eligible for costs protection. In most legal actions, the UK courts apply the “loser pays” rule. This means that if you win your case, you can recover all (or most) of your legal costs from the defendant public body. However, if you lose, you not only have to pay your own legal costs, but also those of the defendant public body as well. In most cases, this can amount to tens (if not hundreds) of thousands of pounds, which clearly acts as a dis-incentive.
Because of UK commitments under EU law and the Aarhus Convention, a claimants’ liability for the defendants’ legal fees in unsuccessful environmental cases is capped at £5,000 for individuals and £10,000 in all other cases.
This is clearly still a lot of money. However, the point is that it is a known quantity and can often be fund-raised for where the case raises issues of significant public interest.
Judicial Review is one of the most effective mechanisms available for individuals and civil society groups to utilise the law to protect the environment. The foundations of democracy and the rule of law require that citizens have access to effective mechanisms to ensure the decisions of public bodies are lawful. JR is therefore a minimum requirement for environmental protection.
While repeatedly emphasising the importance of maintaining the rule of law, these proposals will severely undermine it. This may seem a remote threat but if you have ever contemplated legal action – or think that you may need to do so in the future – it is very important that you register your concern about these proposals now.
What do the proposals involve?
The proposals will affect the environmental costs rules in a number of ways:
How can I respond to the consultation?
Here are some general comments, which you can cut and paste from here straight onto the consultation (or put in your own words if you have time). You don’t have to include them all, pick the ones that you feel most strongly about.
In terms of the actual proposals:
Feel free to add your own points too. You may, for example, have used the current costs rules to bring a challenge in the past.
What is the deadline for responses?
Responses must be in by 11.45 am on Thursday 10th December. Please send your response to: firstname.lastname@example.org
Please put Response to Costs Protection in Environmental Claims Consultation in the subject line.
Alternatively, you can post your response to:
Ministry of Justice,
Post Point 3.38,
102 Petty France,
London SW1H 9AJ
You can also respond online on the Consultation Webpage. If you choose this method, please see the Friends of the Earth document – again posted below – for guidelines on how to answer each question.