Challenging Costs limits in Aarhus Convention claims

The CPR rules on ‘Aarhus Convention Claims’ have just changed.  William Upton explains how the neat simplicity of the provisions have been replaced by rules that will allow for satellite litigation about costs.  Access to environmental justice has just become more uncertain.

ClientEarth, Friends of the Earth and RSPB are in the news as they have already challenged the legality of these changes, especially the provision that allows the Court to vary the cost cap or to remove it altogether. For now, we have to apply and use them. The changes are one of a number made by the Civil Procedure (Amendment) Rules 2017 (S.I. 2017 No. 95), and came into force on 28th February 2017. They are the final form of the proposed amendments that were the subject of consultation back in November 2016.

The main changes are:

• The complete substitution of Section VII of Part 45 (ie. replacing CPR 45.41 to 45.45 in their entirety);
• The introduction of a rule to allow for the Court of Appeal to limit the recoverable costs of an appeal in an Aarhus Convention claim, by introducing a new 19A (but which contains little detail);
• The need for any Claimant who wants to say they are an ‘Aarhus Convention Claim’ to submit a sworn statement about their financial resources at the same time (the requirement is to file and serve with the claim form “a schedule of the claimant’s financial resources which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth). This would have to include any details about Crowd Funding;
• In claims with multiple claimants or multiple defendants, the amounts are to apply in relation to each such claimant or defendant individually (confirming what recent High Court cases have held);
• There may also be some debate about who is or is not a ‘member of the public’ for these purposes, as the only definition given in the new rules is to refer the reader to the Aarhus Convention itself: as “references to a member or members of the public are to be construed in accordance with the Aarhus Convention” (CPR 45.41(1)(b)).
• The costs cap figures remain the same, although they are now set out in the rule rather than just the practice direction. The amount that can be recovered from a individual claimant of £5,000 or from other claimants of £10,000, and from Defendants of £35,000 remain the same (in CPR 45.43(2) and (3)); but …
• The new rule 45.44 provides that the court may vary the amounts in rule 45.43, or may remove altogether the limits on the maximum costs liability of any party, in an Aarhus Convention claim.

You can see why the main complaint made by ClientEarth and others is about the last point. The Court now has the power to vary or remove the cap (under 45.44(2)) if it is satisfied that—

(a) to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and

(b)  in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant.

Whilst point (b) will help the Claimant to argue for different limits, the main use of this new rule is likely to be by Defendants to argue under CPR 45.44(2)(a) that the normal costs rules should be applied and that they will not be prohibitively expensive for the Claimant. When asked to consider using this power, the court will look at the following points:

(3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either—

(a) exceed the financial resources of the claimant; or

(b) are objectively unreasonable having regard to—

(i) the situation of the parties;

(ii) whether the claimant has a reasonable prospect of success;

(iii) the importance of what is at stake for the claimant;

(iv) the importance of what is at stake for the environment;

(v) the complexity of the relevant law and procedure; and

(vi) whether the claim is frivolous.

We can only hope that the High Court gives some better guidance about how these costs rules are to be applied soon.

Notes:

• the full title of the Aarhus Convention is the UNECE Convention on Access to Information Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998. As an UN document, it is not directly affected by Brexit.  The European Directives that implement its provisions in EU law would be.
• These rules cover judicial review claims and statutory challenges “within the scope of” Article 9(1), 9(2) and 9(3) of the Aarhus Convention – covering information requests, public participation rights and national laws relating to the environment. They also cover s.289 cases (challenges to appeal decision on planning enforcement notices), but there is no extension of the rules to s.288 claims (despite what was said by the court in Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539).  Nor has there been any extension of the rules to private nuisance.