On Monday 13 March, I went along to the latest Castle Debate, held in conjunction with the Environmental Law Foundation: see here for more of the same, all free debates, and fascinating topics for anyone interested in environmental law and policy.
It, and Tom Brenan’s talk in particular, reminded me that, despite it being not long after my last Aarhus post (on private law proceedings, here), it was time to set out the latest rules governing judicial reviews, which came into operation on 28 February. The bone of contention, as ever, is the concept that challenging environmental decisions should not be prohibitively expensive.
Until last month, the rules were relatively simple, and were designed, for better or for worse, to minimise the amounts of arguments about costs in environmental challenges. If you were an individual, £5,000 capped the costs which you would have to pay the other side if you lost.
But Government had become obsessed that environmental challengers were somehow getting a free lunch, and the rules have now been spun into something so complicated that defendants who want to burn off claimants before the claim gets heard have been given a pretty broad licence to do so. For most individuals, committing yourself to paying £5,000 if you lose is a pretty sharp deterrent. But Government does not think so.
I referred in my last post to a Ministry of Justice consultation paper here which had accepted the principle that statutory appeals by objectors (like a judicial review all but in name) should be brought with Aarhus protection. Most of us thought that this would therefore be implemented. No.
The only additional appeals brought within the Aarhus regime are appeals against planning and listed building enforcement notices, i.e. landowners’ appeals aimed at retaining whatever it is that they have built in breach, or alleged breach, of planning rules. Quite why they need Aarhus protection to preserve the value of their own land, escapes me. That is hardly the point of Aarhus which is to help people who wish to conserve the local environment, not build on it. Anyway, this rather gives the political game away underlying these particular reforms. So everything thereafter is depressingly predictable.
Under the new rules, an important step now to be taken by Aarhus would-be claimants is to fill in 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. So if my neighbour has said he will pay £500 to me if I lose, I will have to tell the authority I am challenging, and the developer, about my neighbour’s offer. My neighbour may not be quite as forthcoming with his offer about the £500, if he feels that the developer might try and have a pop at him for non-party costs. Many have pointed out the “chilling” effect of this provision. Its drafters are either deeply naive as to how litigation really works, or deeply cynical in that they want community contributions to dry up – neither theory is attractive in government.
The next retrogressive step – Aarhus is now limited to “members of the public”. This appears designed to stop those so deeply wealthy institutions, parish councils (total budget about tuppence-ha’penny), doing what they quite properly may wish to do, which is challenge developments affecting their community, on behalf of their community. It will also cause larger local authorities to think twice about being party to major litigation affecting their borough, as Richard Wald pointed out in the Castle Debate (fresh from acting for various councils opposed to Heathrow developments).
And the next step in the rules – an almost unconstrained ability to move from the general position (£5,000 costs cap) to a free-for-all about the costs cap, to be determined by the Court. This is set out in the new CPR 45.44, which the court may vary the default position. It may not make the costs of the proceedings prohibitively expensive for the claimant; BUT
“(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.”
So you need to have a massive argument about the applicability of Aarhus (which includes the merits of the case), and how important you see the bat/vole/newt/bird/open space/green belt issue, and how important your growth-friendly council or developer contends it isn’t. And all is to happen, supposedly cheaply, before you, the objector, and any backers, know your bottom line. So imagine addressing your community group or well-wisher and being asked – what might I have to pay if I lose? In the old days, the answer would be £5,000. Now it will be whatever the judge decides, given his underlying views about the merits of the case – in short, I don’t know.
There was another perfectly sensible provision in the old rules designed to deter defendants from taking spurious points to the effect that the claim was not an Aarhus claim. If they did, and if they lost, they would have to pay costs on an indemnity basis (i.e. pretty much what the claimant had spent rebutting their dud arguments). The motivation was obvious – stop arguing about the preliminaries and let’s get on to the real case. That has gone – albeit that there is some mitigation of the position if the claim is found not to be an Aarhus claim, namely that each side pay the costs of that issue being determined.
What is so dispiriting about these reforms is that they are almost all one way traffic. There is no nuanced rebalancing of the system. It ought to be about how to streamline cases to be decided quickly, but these rules seem designed to maximise the preliminary fights you have before you get to the real denouement.
They also depart from a sensible baseline, arrived at because the UK was dragged kicking and screaming by the EU Court in Luxembourg and the Aarhus Compliance Committee in Geneva to realise that the old system simply did not recognise the realities of environmental litigation. There are of course NIMBY litigators, but there are many people who are sufficiently concerned about their environment, local or national, that they are willing to put time and some money on the line. But most people won’t do this if they feel their savings or property is at risk. And the new system is designed to make the average person feel that any assets are at risk. Many people are truly altruistic about the environment, but their altruism may have boundaries.
Happily, those concerned about environmental challenges, (ClientEarth, RSPB and Friends of the Earth) have not taken this lying down. They are challenging these new rules: see here. The Environmental Law Foundation (which I chair) is contributing evidence on how a recalibration of the costs position deters those who would otherwise wish to litigate. And, who knows, the UK may find itself back before the CJEU (before the shutters go down) trying to explain why it junked a perfectly good system – and it will certainly end up embarrassing itself before the Aarhus Compliance Committee.
Not for the first time, the Ministry of Justice promoting measures designed to restrict public law challenges rely on a history of “unmeritorious claims” as justifying the new rules, without providing any data in support. Happily, MoJ got in the neck from a little known body, the Secondary Legislation Scrutiny Committee whose job it is to look at rules passed under cover of wide instruments such as this one. See its report here, which pulled no punches.
The Explanatory Memorandum that the Ministry of Justice has provided gives no evidence-based justification for the proposed changes or for the effect that they are assumed to produce, in consequence, our Report suggests a number of questions that the House may wish to pursue. We have also written to the Minister to express our concerns over the way that this policy change was presented.
The only statistical evidence which emerged was from its opponents. The number of Aarhus cases in 2014–15 was 153, about the established average. 48% of environmental cases were granted permission to proceed in contrast with 16% of ordinary Judicial Review cases. Over the same period 24% of the environmental cases were successful in contrast with 2% for all cases in 2014. So environmental cases represent good value for money in comparison with mainstream judicial review cases. Not quite what MoJ had in mind, but if it proceeds on slogans rather than evidence, then it is unsurprising that it will come across as wrong-footed when somebody stands up to it and looks at the data.
More sad Government spinning of the consultation process is exposed by the Scrutiny Committee. As it explained:
The analysis in the E[xplanatory] M[emorandum] simply states that the consultation exercise received 289 responses. It does not explain, as it should, that for most of the questions the number supporting the government’s proposal was less than ten: the vast majority of the responses received were against the proposed changes.
Numbers by themselves of course do not tell the whole story, but when you read a justification for action based on governmental assertion, not evidence, and you see overwhelming opposition, and a proposal undeterred by that, then you conclude that the consultation was in reality a sham. Somebody decided they wanted to do something and no-one was going to stop them.
Anyway, watch this space, and in particular the fate of the FoE/RSPB/ClientEarth challenge.
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- The Environmental Law Foundation
- Aarhus Convention update: Government still ignoring private nuisance claims
- Private nuisance, Article 6 and the costs conundrum
- The Supreme Court on “prohibitively expensive” costs: Aarhus again
- Aarhus, AG Kokott’s opinion and the reciprocal cap
- The CJEU on “prohibitively expensive” and the new protective costs order regime.
- Aarhus for beginners
- Court of Appeal downplays Aarhus