A complaint is being submitted to the Aarhus Compliance Committee in respect of the proposed withdrawal by s.46 of the Legal Aid and the Punishment of Offenders Act 2012 which will prevent a successful claimant in private nuisance cases from recovering their ATE premium. This will restrict access to justice. The Government argues that the ability to bring a claim in statutory nuisance under s.82 EPA 1990 is a substitute but this us disputed.

The communication is submitted by the Environmental Law Foundation (ELF), a UK charity that enables communities and individuals use the law to protect and improve their environment. ELF relies upon a nationalnetwork of specialist environmental lawyers who provide initial advice and assistance on a pro bono basis. ELF submits that the UK has enacted primary legislation that will restrict access to justice in environmental matters and therefore is contrary to the Aarhus Convention. In particular, s.46 of the Legal Aid and the Punishment of Offenders Act 2012 (LASPOA 2012) amends earlier provisions in the Courts and Legal Services Act 1990 and provides for a new s 58C which states:

“A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under subsection (2).”

This means that the after-the-event (ATE) insurance which covers: (i) the costs of expenses such as court fees, expert reports, travel etc, and (ii) the exposure and risk of paying an opponent’s costs can no longer be recovered if a claimant in legal proceedings is successful in a legal claim.