access to environmental justice
In the August edition of environmental law news,
we reported on the decision by the Compliance Committee of the
Aarhus Convention that the UK was in breach of Article 9 of the
Aarhus Convention, which requires that access to remedies in
environmental cases should not be "prohibitively expensive", on the
grounds that exposure to the unlimited liability for the other
party's legal costs faced by all unsuccessful claimants in English
courts was incompatible with the Convention. We also reported on
the decision by the European Commission to bring proceedings on
similar grounds (breach of the Public Participations Directive) in
the Court of Justice of the European Union.
In November 2011, the Government launched a
consultation on the use of Protective Costs Orders in environmental
cases. Key features of the suggested scheme are cross-caps on
liability of £5,000 on the part of the claimant for the defendant's
costs and £30,000 on the part of the defendant for the claimant's
costs.
However, the proposals are unlikely to satisfy
campaigners.
First, they include provisions for defendants
to be able to apply to lift the £5,000 cap, on the basis of
"publicly available" information about the claimant's means. In
practice, as the campaigning bodies most likely to be successful in
litigation are large charities which publish full accounts, such
organisations will continue to be exposed to applications for
unlimited liability.
Secondly, although a complex environmental
case is likely to cost the claimant far more than the cap of
£30,000, there is no corresponding proposal to allow claimants to
apply for the cross cap limit to be lifted or removed. Instead
consultees are asked whether, if a right is given to applicants to
apply for the cross-cap limit to be raised or removed, it would be
appropriate to allow the defendant at the same time to ask for the
claimant's cap to be raised or removed.
The consultation closed on 18 January
