Judicial Review consultation – how to respond

The government is planning to increase the costs to individuals and community groups of applying for an environmental Judicial Review.

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.

Friends of the Earth Judicial Review Consultation Guidelines

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.

Introduction

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.

Why is Judicial Review important?

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:

• Definition of Aarhus Convention claim – the Government proposals would extend costs protection to other types of legal challenges called statutory reviews. However, while this sounds welcome, the proposals only include statutory reviews covered by EU law, which appears to comprise a very small proportion of the total number of cases. Statutory reviews covering other important issues, such as the meaning of harm in the Green Belt, flooding and Tree Preservation Orders, for example, will not benefit from costs protection under the proposed regime. The MOJ must therefore ensure that all statutory reviews covering environmental issues are eligible for costs protection (as is currently the case in Northern Ireland) if it is to comply with the Aarhus Convention.
• Eligibility for costs protection – at the moment, anyone can benefit from costs protection. However, the proposal to confine eligibility to a member of the public could exclude community groups, Parish Councils and even environmental NGOs from costs protection. The proposals may also exclude challenges to legislation impacting on the environment (such as environmental taxes, control of chemicals or wastes, exploitation of natural resources and pollution from ships) that does not specifically mention the environment in its title or heading from costs protection.
• Costs protection and permission – costs protection currently applies from the time the claimant makes an application to the court for JR. The Government is proposing to make costs protection contingent on a claimant obtaining permission to proceed with an application for JR. This will prevent the UK from complying with EU law and the Aarhus Convention as it could expose the claimant to thousands of pounds worth of legal fees before costs protection is secured.
• Level of the caps on adverse costs liability – the current of caps of £5,000 for individuals and £10,000 in all other cases will no longer apply. The Government’s changes would enable defendants to challenge the level of the cap on a claimant’s adverse costs liability depending on their circumstances. This would conflict with the EU-law requirement for advance certainty with regard to costs exposure as people won’t know whether they definitely have costs protection from the outset and, if so, what level of protection will apply. Proposals to increase the caps from £5,000 (individuals) and £10,000 (other cases) to £10,000 and £20,000 have no basis and do not satisfy the requirement for costs to be “objectively reasonable”. It is important to recognise that the figures for adverse costs liability do not represent the claimant’s total costs liability – the claimant must also pay the court fee (just under £1,000) and their own legal costs, which routinely total around £25,000. The total costs exposure of £31,000 – £36,000 is already prohibitively expensive for many claimants, particularly individuals.
• Schedule of financial resources – The Government’s proposals will oblige claimants to submit a schedule of financial resources identifying any third party financial support for JR. These requirements are unsubstantiated and unworkable. It is also worrying that such information, which may contain the names and addresses of children and vulnerable people, could be made available to defendants.
• Multiple claimants – the £5,000 and £10,000 caps on adverse costs liability current apply no matter how many individuals or groups bring a case to court. The Government is proposing that in cases brought by more than one individual or group, separate costs caps will apply to each of them, therefore making the total costs liability much higher. This will render the total costs exposure objectively unreasonable and, therefore, in contravention of EU law and the Aarhus Convention.
• Challenging Aarhus Convention claims – it is currently quite onerous for defendants to challenge the status of a claim as an environmental (Aarhus) claim. The proposals seek to change the basis on which costs are awarded following an unsuccessful challenge. This will encourage defendants to challenge claims and lead to unnecessary “satellite litigation” (whereby the parties argue about issues other than the substantive issues in the case).
• Interim relief (injunctions) – the Government’s proposals include requiring applications for an injunction to be made by a member of the public, the introduction of a subjective element to decisions on cross-undertaking in damages and a requirement for the court to have regard to the combined financial resources of multiple claimants when making decisions about cross-undertakings in damages. These proposals will prevent many claimants from being able to access relief also will therefore conflict with EU law and the Aarhus Convention.

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.

• The Government has failed to provide any evidence that individuals, community groups and environmental NGOs are abusing the process of Judicial Review or that environmental cases frustrate economic recovery. In fact, evidence obtained from the Ministry of Justice in 2015 confirms that while environmental JRs represent less than 1% of the total number lodged of cases lodged annually (some 20,000), they demonstrate very high success rates (approximately 24%) when compared with JRs as a whole (2%). Environmental JRs therefore play an essential role in protecting the environment, checking the abuse of power and upholding the rule of law.
• The proposals will prevent the UK from complying with the access to environmental justice provisions of EU law (the EC Public Participation Directive) and the Aarhus Convention. This will result in further international scrutiny and the possibility of sanctions from the European Court.
• The proposals will force the parties to spend more money and time arguing about costs protection than the substantive issues in the case.

In terms of the actual proposals:

• The Government must ensure that all statutory reviews covering environmental issues are eligible for costs protection (as is currently the case in Northern Ireland) if it is to comply with the Aarhus Convention.
• There is no basis for restricting who can benefit from costs protection – the current regime has not led to a proliferation of cases.
• Costs protection should apply from the point at which an application for JR is submitted to court – as is currently the case. Making costs protection contingent on obtaining permission to proceed with JR will prevent the UK from complying with EU law and the Aarhus Convention as it could expose the claimant to thousands of pounds worth of legal fees before costs protection is secured.
• There is no basis to change the current caps on adverse costs liability. To increase them would conflict with the EU-law requirement for advance certainty with regard to costs exposure as claimants won’t know whether they definitely have costs protection from the outset and, if so, what level of protection will apply. The figures for adverse costs liability do not represent the claimant’s total costs liability – the claimant must also pay the court fee (just under £1,000) and their own legal costs, which routinely total around £25,000. The total costs exposure of £31,000 – £36,000 is already prohibitively expensive for many claimants, particularly individuals.
• Proposals to require claimants to submit a schedule of financial resources identifying any third party financial support for JR are unsubstantiated and unworkable.
• Proposals for the caps on adverse costs liability to apply to individual claimants (where there is more than one) will render the total costs exposure objectively unreasonable and, therefore, in contravention of EU law and the Aarhus Convention.
• Proposals to change the basis on which costs are awarded following an unsuccessful challenge will encourage defendants to challenge claims and lead to unnecessary “satellite litigation”.
• Proposals in relation to interim relief will prevent many claimants from being able to access an injunction and therefore conflict with EU law and the Aarhus Convention.

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.

If you would like to submit a more detailed response, please contact Carol Day, Vice-Chair of Wildlife and Countryside Link’s Legal Strategy Group on cday2948@gmail.com or cday@leighday.co.uk

What is the deadline for responses?

Responses must be in by 11.45 am on Thursday 10^th December. Please send your response to: michael.animashaun@justice.gsi.gov.uk

Please put Response to Costs Protection in Environmental Claims Consultation in the subject line.

Alternatively, you can post your response to:
Michael Anima-Shaun,
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.

Friends of the Earth Judicial Review Consultation Guidelines