A new report, A Pillar of Justice II, reveals the impact of the UK’s failure to meet international commitments to ensure that environmental claimants are not priced out of court. Figures published today in the Report by the RSPB, the Environmental Law Foundation (ELF) and Friends of the Earth England, Wales and Northern Ireland reveal that the number of environmental Judicial Reviews (JR) brought to the High Court has been declining for the last decade, falling from 180 cases a year at its peak to around 84 cases a year in 2022 (1).
The NGOs’ Report, based on Ministry of Justice data obtained under the Environmental Information Regulations 2004, suggests that the reduction may be due to the high cost of legal action and the impact of legislative changes introduced by the Government to deter Claimants from challenging public bodies (2).
The UK is under a deadline to address the high cost of legal action as a result of an international law treaty, the Aarhus Convention (3). In 2010 the UK was found to be in breach of the Convention’s requirement that legal action should not be “prohibitively expensive”. An Action Plan published by the UK Government in July 2022 committed the Ministry of Justice to review the costs rules for environmental cases in England and Wales and remove barriers to access to justice by 1 October 2024. However, the report suggests the impacts are already being seen with fewer Judicial Reviews being brought.
Some environmental cases, such as judicial reviews, benefit from special costs rules preventing individuals, community groups and NGOs being exposed to high legal costs when they lose a case. The starting point for unsuccessful individuals is that they are liable for up to £5,000 of a public body’s legal costs, whereas community groups and NGOs pay up to £10,000. But changes to the costs rules in recent years allow defendants and Interested Parties (frequently the developer promoting a scheme or project) to apply to increase these default caps. For example, in a recent case brought by ClientEarth, the Claimant’s cost cap was increased from £10,000 to £25,000 (4).
Case studies from ELF illustrate that despite being advised by lawyers that they have arguable cases, sometimes with good prospects of success, individuals and community groups sometimes feel unable to bring legal claims for fear of the costs risks.
The Report also shows that the success rate for the permission stage in environmental JRs (in which a judge decides whether the case is arguable without a hearing) has remained relatively stable over the last decade. Around 35% of environmental JR applications are granted permission to proceed to a full hearing. While the authors are reluctant to draw any firm conclusions at this stage, it reflects anecdotal evidence that the courts are becoming more hostile to environmental claims.
The permission stage can now feel like a full-blown hearing – in a recent case brought by Wild Justice against the water services regulator Ofwat, the case was held to be unarguable following two full-days of legal argument in the High Court (5).
The report concludes that around 10% of environmental JRs are ultimately successful for the Claimant. As the success rate for JRs generally is around 3%, environmental cases continue to perform well when compared to JRs as a whole.
Speaking at the launch, Carol Day, Consultant Solicitor for the RSPB said: “Everyone should have the right to seek justice and have their voice heard when an issue needs investigation. The Aarhus Convention seeks to ensure that legal action is not confined to those with the deepest pockets, but this Report shows that more must be done to enable people to hold public bodies to account on issues such as air and water pollution, biodiversity protection and climate change.”
Katie de Kauwe, Environmental Lawyer at Friends of the Earth England, Wales and Northern Ireland said: “Our legal system provides an important means to check the abuse of State power. It is through taking a legal challenge, that Friends of the Earth and sector allies established last year that the Government had breached the Climate Change Act. It is therefore deeply concerning that individuals and community groups are sometimes prevented from taking strong environmental cases because of the cost risks of doing so. Justice should not be a privilege for those who can afford it; it should be a right for everyone.”
Emma Montlake, Joint Executive Director at ELF said: “ELF receives significant numbers of requests for assistance from communities contemplating judicial review of environmental decisions. It is a hard fact that despite the Aarhus costs protection, ELF sees many claims not being pursued, despite there being grounds to do so, as the costs of an environmental challenge remain a major hurdle for ordinary people. Public interest cases are different as they are being brought in the interests of the wider public good, for the protection of the environment, there is no personal gain. They frequently involve people motivated by a love of their local nature. In ELF’s experience access to environmental justice is not being properly served.”
To address the UK’s failings, the Report sets out the main barriers in terms of costs and recommends how they can be removed. For example, it is recommended that England and Wales adopt the same costs model as Northern Ireland, in which the default cap can be varied downwards where a Claimant is of limited means but cannot be varied upwards, which provides Claimants with advance certainty as to the legal bill they will be facing.
