London Climate Action Week: Funding environmental cases & the Aarhus fixed costs Rules

2 July 2019

Access to justice is central pillar to the rule of law. Ensuring individuals and organisations can afford access to justice is a real challenge, none more so than in environmental cases where the success is not driven by monetary reward.

The Aarhus Convention provides everyone within a signatory state, the right to review procedures to challenge public authority decisions that have been made without respect being given to the right of ‘access to environmental information’ and the right to ‘public participation in environmental decision-making’, see our blog on the ClientEarth judicial reviews: Saving Londoners from nitrogen dioxide, one judicial review at a time . The convention also covers environmental law in general.

Given the lack of monetary relief, funding opportunities are not as prevalent as in party to party litigation. Whilst there is a steep rise in third party ligation funding across the profession generally, the same cannot be said for those wishing to find help in funding environmental claims. The European Commission does provide funding/grants to projects via the LIFE programme but funding for a judicial review can be a lonely and expensive process despite the convention requiring that access the environmental justice is not prohibitively expensive. Crowd funding is now a genuine route to securing funding in such circumstances and organisations such as CrowdJustice are providing potential litigators with a new pathway for access to justice. Some firms will run cases on a pro bono basis in certain circumstances.

But securing funding is just one side a fairly weighty coin. What happens to the costs on the other side and how can a party bringing an Aarhus claim protect themselves from being hit with a hefty costs bill if things do not go to plan? Cost limitations in Civil Procedure Rule 45.41 provides for the costs which are to be recoverable between the parties in these circumstances.

Limit on costs recoverable from a party in an Aarhus Convention claim

45.43

(1) Subject to rules 45.42 and 45.45, a claimant or defendant in an Aarhus Convention claim may not be ordered to pay costs exceeding the amounts in paragraph (2) or (3) or as varied in accordance with rule 45.44.(2) For a claimant the amount is—
(a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person;
(b) £10,000 in all other cases.

(3) For a defendant the amount is £35,000.

(4) In an Aarhus Convention claim with multiple claimants or multiple defendants, the amounts in paragraphs (2) and (3) (subject to any direction of the court under rule 45.44) apply in relation to each such claimant or defendant individually and may not be exceeded, irrespective of the number of receiving parties.

They key to note here is that either party can apply, under CPR 45.42, to lift the fixed fee limitations and so your solicitor should advise of this to ensure you’re protected from the outset and are aware of the potential costs. For example, a Defendant can recover costs for filing and preparing the acknowledgment of service and summary grounds of defence as was the case in Mount Cook Land Ltd and Another v Westminster City Council. This is often overlooked and can be nasty surprise or a missed opportunity depending on your side of the fence of course.

If you are an organisation incurring costs ‘in-house’ there are also circumstances where you can recover those costs as part of the claim, be it as Claimant or a Defendant and so decisions such as Sisu Capital Fund Ltd & Ors v Tucker & Ors [2005] EWHC 2321 (Ch) and Amec Process and Energy Ltd v Stork Engineers and Contractors Bv (No. 3): TCC 15 Mar 2002 are well worth considering in this regard.

Without affordable access to justice, public authority decisions and access to environmental information can pass unchecked to the detriment of us all. The legal profession and indeed the public have a duty to work together to uphold affordable access to justice for NGO’s and individuals.

This blog was written by Michael Tyler, Partner in our Costs department. For advice on funding or if you are already a party to a claim and need assistance, please contact Michael Tyler.

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