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access to environmental justice - an update

In the autumn edition of environmental law news, we examined some of the developments in relation to access to justice in environmental matters from May 2008 to March 2010.  In this edition, we provide you with an update.

By way of a reminder, currently, UK procedure and rules pose a threat to campaigners who, if they pursue a matter through the courts and lose, risk paying their opponent’s huge legal costs, often running to tens of thousands of pounds and more.  Many argue that this runs counter to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, ratified by the UK in 2005. Article 9 of the Convention ‘Access to Justice’ provides that procedures are to provide adequate and effective remedies ... and be fair, equitable, timely and not prohibitively expensive.

September 2010 – Aarhus Convention Compliance Committee’s findings in three cases brought against the UK

The Compliance Committee has found that the UK has breached Article 9 of the Convention.  A summary of the facts of each case together with the Committee’s findings can be found below.  Advance edited copies can be accessed by following these links, courtesy of

DEFRA’s implementation report (see October 2010 below) refers to the Compliance Committee’s findings on access to environmental and explains some of the steps that the Government is taking to deal with them.

September 2010 – the Working Group on Access to Environmental Justice publishes an Update Report and condemns the use of PCOs

Having reported initially in May 2008 (see the autumn edition of environmental law news), the Working Group on Access to Environmental Justice published an update report in September 2010, Ensuring Access to Environmental Justice in England and Wales – Update Report.

The Working Group’s original report in 2008 recommended that the costs regime should be altered, but, seeking changes that could be made "relatively easily and quickly within the existing legal framework" focused on recommendations to improve the existing Protective Costs Orders system.

In the Update Report, the Working Group has changed its direction and now recommends "qualified one way costs shifting" that Lord Justice Jackson proposed in his Review of Civil Litigation Costs (qualified one way costs shifting is explained in the autumn edition of environmental law news). The Working Group proposals contain a different formulation, however, from that set out by Lord Justice Jackson.

The Working Group has abandoned Protective Costs Orders as a way forward, owing to recent English case law which has reduced their utility in the environmental field, to a recent case brought against Ireland by the European Commission and to an Opinion delivered in the current litigation (see below).

The Working Group’s conclusions are set out at paragraphs 25 to 35 and the full report can be viewed online courtesy of the WWF.

October 2010 - consultation on the implementation of the Aarhus Convention in the UK

Parties to the Aarhus Convention are required to compile a report on their implementation of the Convention before each meeting of the parties.  The last meeting of the parties was in July 2011.

On 15 October 2010, the Department for Environment, Food and Rural Affairs (DEFRA) launched a consultation on the UK’s draft report.  The consultation ran until 17 November 2010.  DEFRA submitted its final report to the Convention Secretariat in December 2010 and this can be viewed on the UNECE website.

December 2010 – Supreme Court Decision: R (on the application of Edwards and another) v Environment Agency and others [2010] UKSC 57

In December the Supreme Court held, in this case, that it was not for costs officers, through detailed assessment, to implement the Aarhus Convention’s Article 9 requirement that procedures should not be ‘prohibitively expensive’.

Whether the review procedure was ‘prohibitively expensive’ was for the court to address, most desirably at the outset of proceedings.  However, the court could also consider this at the end of proceedings and set a limit on the paying party’s liability.

The Supreme Court found that the test as to whether proceedings were ‘prohibitively expensive’ was in a state of uncertainty.  It referred the question as to whether the test was an objective or subjective one to the ECJ for a preliminary ruling.

A full copy of the judgment can be accessed through BAILII.

April 2011 – European Commission announces proceedings against the UK

In the autumn edition of environmental law news, we reported that in March 2010, (following receipt of a first written warning ("Letter of Formal Notice")) the European Commission issued the UK with a final written warning ("Reasoned Opinion") in relation to the prohibitively high costs of pursuing environmental litigation which runs counter to European legislation (as well as the Aarhus Convention). 

We explained that if the UK did not comply with the final written warning, it could be called before the European Court of Justice (ECJ).  In April 2011, the European Commission announced that it was indeed taking the UK to the ECJ, noting that over a year had passed since it issued the UK with its final written warning and that the UK had failed to address its concerns through legislation.

Failure to comply with a judgment of the European Court of Justice can ultimately result in financial penalties running to millions of Euros.

For more information, please contact John Mitchell, head of Blake Lapthorn solicitors' Environment team on 023 8085 7231; email