The UK is bound by international law to afford environmental campaigners access to the legal system so that they can fight cases in the public interest at a price they can afford. In an important decision, the High Court has analysed recent changes in rules of court procedure that gave rise to concerns that such proceedings would become prohibitively expensive.

The 1998 Aarhus Convention bound EU member states to guarantee public rights of access to environmental information, public participation in decision-making and access to justice in environmental matters. Although the convention is not directly effective in the UK, its provisions are reflected in EU legislation, including the Environmental Impact Assessment Directive and the Industrial Emissions Directive.

Since 2013, the UK has had costs rules in place that seek to comply with those legal and treaty obligations. In particular, the legal costs of bodies and individuals who wish to bring environmental proceedings that are considered to be of general public importance are routinely capped to reflect their limited means. Such proceedings are often exceedingly complex and it is recognised that unlimited costs would have a chilling effect on access to justice.

Three environmental groups mounted a judicial review challenge to amendments to the costs regime in environmental cases that came into force in February 2017. It was argued that a change to the rules that enabled the variation of cost caps at any point in the litigation was in breach of EU law. As cost-capping inevitably entails detailed disclosure of often sensitive financial information, it was also submitted that such hearings should take place in private.

Ruling on those issues, the High Court found that cost caps should normally be set at an early stage in proceedings. However, it could find no fault in a change to the rules that enabled such caps to be subsequently varied in the event of a material change in a claimant’s financial resources or if evidence emerges that false or misleading financial information has been provided. In such circumstances, judges were entitled to re-examine whether costs caps could be increased without rendering the litigation prohibitively expensive.

Turning to the privacy issue, the Court noted that the default position is that proceedings are held in open court. However, it noted that public disclosure of financial information could have a chilling effect and discourage some would-be litigants from bringing environmental cases. It therefore found that the rules should provide for cost-capping hearings to take place in private in the first instance.

The Court noted that government lawyers had conceded that claimants’ own costs of bringing environmental proceedings should be taken into account when assessing their financial resources for the purposes of cost-capping.

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