When does a case become “prohibitively expensive”?

24 October 2012 by David Hart KC

R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated

In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention. 

My further thoughts on this case are found here.

The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.

The answer which has just come back from Advocate-General Kokott in the CJEU is, at first sight, a bit of a non-answer. But it is very important, all the same, because it feeds into the debate going on at the moment about whether the UK generally is breach of its obligations under Aarhus and EU law in respect of its system of environmental challenges – not least because the UK is facing infringement proceeding from the EU on precisely this point. Whilst there is quite a lot of fudge in the answer, the following propositions emerge from the A-G’s opinion:

(i) there is a broad discretion conferred on member states as to how they meet the Aarhus obligations, and in particular the obligation in Article 9(4) of Aarhus that proceedings shall not be prohibitively expensive;

(ii) but member states still must ensure that the right of environmental challenge is effectively protected – as she put it ” Consequently, the Member States’ rules must actually prevent in each individual case the judicial proceedings covered from being prohibitively expensive.” [24]

(iii) prohibitive expense is not the same as disproportionate expense: “Reasonable but prohibitive costs are a possibility in particular in environmental proceedings relating to large-scale projects, since these may be very burdensome in every respect, for example with regard to the legal, scientific and technical questions raised and the number of parties.” [29]

(iv) member states must ensure that the rules about costs in environmental cases are set out in a clear and binding manner.

A-G Kokott then faced the Abramovich v. person on benefits question. English lawyers are very fond of the “is it subjective or objective?” question. The Advocate-General’s answer to the Supreme Court’s question was – a bit of both. The European Commission was arguing that there was an objective standard – would an ordinary person be deterred by the costs in issue? The Advocate-General recognised that environmental cases fell into a specific category; in a sentence redolent of Lord Hope last week (see my post):

Recognition of the public interest in environmental protection is especially important since there may be many cases where the legally protected interests of particular individuals are not affected or are affected only peripherally. However, the environment cannot defend itself before a court, but needs to be represented, for example by active citizens or non-governmental organisations.

But then she made it a bit more – correction, a lot more  – complicated.

A. A claimant may be being purely public-spirited. Equally, he or she may be defending their economic interests. The latter ought to bear higher risks than the former. But that does not mean that the presence of someone pursuing their own individual interests means that you disregard any public interests in the case; the A-G gives the example of an airport where there might be a very wide group only a few of whom may be suing. So a court has to titrate individual interests against wider public interests.

B. The prospects of success may be relevant.

In a perfect world, all this may be fine. But how do you come up with a system which does not in practice deter people from even starting litigation. The UK has evolved its own mechanism in an attempt to address this – the Protective Costs Order. The idea is at the beginning of proceedings the courts set a figure which the claimant will have to pay if he or she loses. Current thinking from the Ministry of Justice is that this figure should be £5,000 in environmental cases. If the claimant gets such a PCO, he or she can then decide – yes I will sue, no, I won’t. The A-G thought that the PCO system was “in principle an appropriate element in the implementation of Article 9(4) of the Convention…” The obvious point for a claimant is that you know where you stand before you start.

But the problem with the A-G’s picture of a PCO is that getting her sort of PCO is about as complicated as winning the case at the end of the trial. The claimant’s means might be important. The public interest of the case will be important (according to whom – the claimant or the defendant?). The merits of the claim will be important (ditto, and after what length of inquiry?). Alert readers will have predicted the next question – how do you make the getting of a PCO itself not prohibitively expensive? Because if you do not do so, you deter people from bringing potentially meritorious cases just as much as you do if the costs of trial are prohibitive. Put the other way round, if you make the getting of a PCO fairly straightforward, you encourage claimants to apply for them and defendants to abide the result -without throwing the kitchen sink at the case. The more nuanced you make the process, the more you encourage defendants to try and stifle the case – at birth.

Generally speaking, the EU Court says rather less about a case than the Advocate-General’s opinion whose brief is to consider every facet of things so that the CJEU can pick and choose the bits it agrees on (see my post on why no dissent there). So we may well get a less informative result here, not least because of the sensitivity of the case in that it inevitably impacts on national procedural issues. If we do, the real argument comes when the matter is restored once more before the Supreme Court who has to apply the CJEU’s decision, and try and make sense of it given the constraints and opportunities of the domestic system. Let us hope that someone who has wrestled with PCOs in practice is sitting in the Supreme Court on that particular day.

Legal aid

Some time ago, the question of PCOs did not arise because many environmental challenges were pursued by legally-aided claimants. The legal aid meant that the state paid their own lawyers’ fees and the claimants got statutory protection against the defendants’ costs – except in the most exceptional circumstances, such that the order was known as the “football pools’ order” enforceable only in that statistically unlikely event. The A-G made passing but significant reference to legal aid in her opinion. She noted that the Aarhus Convention did not require such legal aid – but continued:

However, legal aid makes it possible to prevent risks in terms of prohibitive costs in certain cases. In so far as the enforcement of provisions of EU law is concerned, legal aid may even be absolutely necessary if the risks in terms of costs, which are acceptable in principle, constitute an insurmountable obstacle to access to justice on account of the limited capacity to pay of the person concerned. [38]

This opens an interesting new avenue – namely that in the right sort of EU case an obligation arises on the state to provide legal aid (it is “absolutely necessary”) if otherwise costs might be insurmountable. I sense that this paragraph of her opinion might be ending up in the Legal Service Commission’s inbox before too long. And to make it even more tantalising, the case the A-G cites (DEB Deutsche-Energiehandels-und Beratungsgesellschaft) is not even an environmental case. Open season once After The Event insurance against defendants’ costs effectively hits the dust next year?

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