The Planning Court has recently clarified the rules on costs protection for claimants bringing judicial review claims and statutory challenges on environmental grounds.
Both sides in the proceedings are claiming victory, but did either of them really win?
Like any form of litigation, challenging planning or environmental decisions of public bodies by judicial review can be expensive and risky. If unsuccessful, a claimant is likely to have to pay the defendant's costs. However, in such cases both claimants and defendants are entitled to costs protection under rules which implement the requirement in Article 9(4) of the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) that proceedings must be "not prohibitively expensive".
In 2013 the Civil Procedure Rules were changed to introduce fixed costs caps in judicial review cases to which the Aarhus Convention applied (Aarhus cases). Individual claimants were entitled to an automatic cost cap of £5,000, corporate claimants to a cap of £10,000 and unsuccessful defendants to a cap of £35,000. In February 2017 further changes were introduced, extending the fixed costs caps to statutory challenges (such as under section 288 of the Town and Country Planning Act 1990), but also enabling the costs cap to be varied at any stage in the proceedings and requiring claimants to provide details of their financial resources (including any third party support).
Three environmental organisations - the RSPB, Friends of the Earth and Client Earth - challenged the February 2017 changes. They argued:
- the ability to vary the costs caps at any point in the proceedings failed to provide 'reasonable predictability' in relation to both whether costs were payable and their amount;
- it was unlawful to fail to provide for private hearings when a claimant's or third party supporter's financial means might be discussed at the hearing; and
- the claimant's own legal costs should also be included in the assessment of whether costs protection could be granted and whether or not the proceedings were 'prohibitively expensive'.
Did the ability to vary costs caps provide 'reasonable predictability'?
The claimants argued that the risk of costs caps changing during the course of proceedings would have a significant 'chilling effect' on claimants' willingness to bring proceedings in meritorious cases. However, the court noted that the Civil Procedure Rules already required defendants to apply for any variation of a default costs cap in their acknowledgement of service. On that basis, it considered that they provided 'reasonable predictability'. Nonetheless, it would still be possible for the default costs cap to be reconsidered if a claimant provided false or misleading financial information, or if there was a material change in their financial circumstances.
Should hearings to assess financial means be held in private?
The claimants were concerned that the changes introduced in February 2017 might require them to reveal the identity of individual donors and details of their donations, which might deter those donors from supporting the recipients of their donations. Although the Ministry of Justice had made a concession that it would recommend that hearings to discuss financial means should be in private - where the claimant was a private individual - the court saw no basis for differentiating between private individuals and other legal persons. The court, therefore, ruled that the prospect of public disclosure of claimants' and their supporters' financial information breached the requirement to ensure wide access to justice, and that all disputes over costs cap increases in Aarhus cases should be held in private.
Should claimants' own costs also be assessed?
The Ministry of Justice accepted that a claimant's own legal costs could be a material matter for the court to consider in assessing whether the default costs caps were appropriate.
Both sides in the proceedings claimed victory. However, the real value in the case is the clarification it provides not only for individuals and environmental organisations who may bring judicial review claims and statutory challenges, and for public bodies defending such claims and challenges, but also for interested parties in those proceedings, such as developers whose planning permissions are at risk. Those interested parties need to be aware that if they want to challenge the default costs caps afforded to claimants, then they need to do it at the earliest possible stage in the proceedings. To the extent that it is possible (and lawful), they should also try to keep the claimant's financial means under review, in case there is scope for the default costs cap to be reconsidered at a later stage in the proceedings.