The three NGOs who brought the judicial review, represented by law firm Leigh Day, were the Royal Society for the Protection of Birds (RSPB), Friends of the Earth and ClientEarth, who claimed that new rules which were implemented by the government in February this year would have a chilling effect on environmental legal challenges.
In the order published last week, which requires the Secretary of State for Justice to pay all of the NGOs’ legal costs up to a cap of £35,000, the judge states:
“I am unable to accept the defendant’s submissions that the claimants’ entitlement to costs should be reduced to 50% or some other figure. Whilst it is correct that in relation to Ground 1 the judgment did not lead directly to a quashing order it was necessary for the court to provide detailed analysis of the appropriate procedures to be followed to ensure compliance with EU law requirements. The claimants’ action in bringing the claim enabled the court to provide authoritative guidance in relation to the lawful approach to cost capping in the context of the changes made to the CPR [Civil Procedure Rules] allowing for cost caps to be adjusted.”
The order also approved rules changes which the government was forced to make in light of concessions achieved by the claimants by the end of the case.
The High Court ruled on 15 September 2017 that key aspects of new legislation (under rule 8(5) of the Civil Procedure (Amendment) Rules 2017/95), which allowed for default caps on legal costs to be varied at any point during the case, rather than remaining fixed throughout, would in principle breach EU law but for the concessions made by the government.
The previous rules, which were based on the Aarhus Convention, provided certainty for claimants in environmental cases, by limiting their cost exposure to no more than £5,000 (if they were an individual) or £10,000 (if they were an organisation) should they lose the case.
But for this challenge, the new rules, as well as endangering this certainty for people and groups bringing environmental legal cases, could also have meant that: hearings on setting a different costs cap level, which will discuss the resources of a claimant or their donors, would not be required to be heard in private; and the costs of a claimant’s legal team would not have necessarily been taken into account when a varied cap was set.
The NGOs had challenged the compatibility of the new rules with Article 3(7) of the Public Participation Directive 2003/35/ED, because they failed to provide: (i) at the earliest stage possible, certainty for claimants as to their costs exposure; and (ii) mandatory private hearings into a claimant’s financial resources (including to protect the identity of donors).
William Rundle, Friends of the Earth lawyer, said: “In the face of further government protestations the court has made it crystal clear that the Claimants were right to bring this case, and so the government should pick up our full legal bill.
“Our claim has enabled an authoritative and detailed ruling, restricting how these new rules must work to be legal. This is a ‘big win’ for a more inclusive system for environmental cases in England and Wales, otherwise people with less money could have been excluded from accessing justice and clearly that’s wrong.”
Martin Harper, RSPB’s Director of Global Conservation, said: "Litigation is always a last resort but the clarity secured by this case will make it less onerous for the public and environmental NGOs to challenge potentially damaging environmental decisions. The judge awarded us our full costs in this case on the basis that such clarity is in everyone's best interests and the interests of access to justice."
ClientEarth lawyer Gillian Lobo said: "We brought this case because of the real uncertainty and chilling effect created by the government's new costs rules for those who have to go to court to protect the environment. By ordering the government to pay the claimants’ full legal costs, the judge has reaffirmed the need for us to bring this case and our victory for access to justice."
Rowan Smith, solicitor at Leigh Day representing the NGOs, said: “This order is significant in confirming the merit of the case we brought on behalf of the NGOs. The government had argued the claimants shouldn’t be entitled to their full legal costs. This order confirms the case was won beyond doubt by our clients, and also justifies the claimants push for the rule changes following the judgment.
“This case resulted in significant amendments to the Government’s costs rules, which will ensure better access to environmental justice and will go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.”