Environmental proceedings must not be “prohibitively expensive”
Judges must look beyond the financial means of individual claimants to ensure environmental legal proceedings are “not prohibitively expensive”, the European Court of Justice (ECJ) has ruled.
The court found against the UK in the case of Edwards (Case C-260/11). Both EU law and the Aarhus Convention, to which the UK is a signatory, oblige members to ensure that ordinary citizens and groups are able to afford to go to court and challenge the decisions of public and private bodies that threaten the environment.
The ECJ held that the courts must take a number of factors into account when considering costs, and should decide whether a figure would be “objectively unreasonable”. These include whether the claimant has reasonable prospects of success, the importance of what is at stake for the claimant and for the environment, the complexity of the law involved and whether public funding or other costs protection schemes are available.
On 1 April, new reforms to the costs rules for environmental cases in England and Wales came into effect. These cap the costs that individuals and environmental groups would have to pay to public bodies if they lose, and introduce a cross-cap on the amount they can recover if they are successful.
However, critics say the cap is too high and the cross-cap will discourage lawyers from taking these cases.
According to the Coalition for Access to Justice for the Environment, Edwards, which concerned a challenge to a cement works, may prompt the government to change the reforms it has just introduced.
Carol Day, solicitor at World Wildlife Fund, says: “The judgment confirms that the government must ensure the public at large can exercise their democratic right to go to court.”
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