Aarhus: UK seems to be in trouble again, this time with the CJEU

13 September 2013 by David Hart KC

Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 

“It is well known that in United Kingdom court proceedings are not cheap” – a masterly understatement opening this opinion from our pictured AG to the CJEU about whether the UK system on legal costs complies with the obligation now in two EU Directives about environmental assessment and pollution control. The AG thinks that our way of doing costs is not up to scratch – with the origin of this obligation to be found in  the UN-ECE Aarhus Convention to which the EU has subscribed (albeit abstemiously when the EU comes to its own affairs – funny that). 

Bit of context – the EU has been warning the UK about costs for some years, with formal warnings going back to 2007 – and the Aarhus Convention Compliance Committee has been doing likewise from Geneva. But the EU courts are more scary – all the ACCC can do is wrap the odd knuckle. And on this topic, we have one individual case which has been to the CJEU (Edwards, where the UK does not look in good shape – see my post), and now this case saying that the UK has a systemic problem with excessive costs.

But one thing we must remember. The law according to the AG looks at the law before the UK had a go at sorting the problem out – see my post, as above. on the new UK regime. There is some important stuff about how the old system did not comply, which will have implications for the new rules.

One basic point taken by the Commission was that the costs of starting and failing on an environmental challenge were excessive. The UK is recorded as making a number of arguments, which seem, well, quaint.

It refers to the legal aid scheme – what legal aid scheme covering the typical environmental challenge? And the limited costs risks when applying successfully for judicial review – risks which the government seems keen to ramp up in its latest proposals. But as the AG says, Aarhus is not really interested in the hopeless claims which get knocked out at little expense. The real deterrent is to the claims with some merit but with uncertain success. And the final throw by the UK is that people can always take out After The Event Insurance, which in another set of reforms have now become irrecoverable from the other side, even if the case is successful. Interesting to know whether the UK ‘fessed up to the various retreats from facilitating affordable justice which it has made over the last year or so.

I shall return to this opinion in due course. But the AG’s findings are:

(I) the courts’ discretion to grant Protective Costs Orders is not tied to the objective of costs protection, and the criteria applied are incompatible with Aarhus obligations;

(ii) the cap which the UK courts impose on claimants’ costs as part of the deal to cap defendants’ costs may prevent the recovery of a reasonable success fee and is therefore in breach of Aarhus;

(iii) the requirement for a binding undertaking as to damages as a requirement for getting interim relief is also in breach.

So, by way of initial response, whilst (i) may be ameliorated by the new domestic rules about PCOs in environmental cases, the new rules provide for the reciprocal cap which affects the claimant’s costs (potentially still in breach of (ii)), and breach  (iii) is unaddressed in the April 2013 regime.

We have of course to wait until the CJEU gives its views on the case. It normally but by no means invariably follows the AG’s lead. If it does, I sense some further amendments coming on – doubtless through gritted teeth, given the current governmental Europhobia.

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