Access to justice consultation: charities still unlawfully exposed to unmanageable costs under proposed rules

20 October 2011


The Ministry of Justice has published proposals and launched a consultation on reforming the costs system in environmental litigation. However, the proposed changes would be unlawful and unfair as charities could still face disastrous legal costs.

The consultation attempts to bring the UK into line with international law, by codifying the rules on protective costs orders. It was launched following a landmark case brought by ClientEarth where a UN watchdog held that the UK was in breach of international law because access to the courts in environmental cases was prohibitively expensive. In April this year, the European Commission referred the UK government to the European Court of Justicebecause the high cost of access to justice also breaches EU law.

Individuals and charities challenging environmental damage in the UK face unfair costs. Claimants in environmental cases face having to pay the other side’s costs in the event that they lose. The courts have tried to make the system fairer by creating “protective costs orders” to cap the claimant’s liability, but this is still highly uncertain for claimants.

Under the proposals claimants in environmental cases will automatically have their costs capped at £5,000. However, costs protection can be removed if publically-available information shows that the claimant is “not in need of costs protection”. Charities accounts are public information and therefore any charity with more than minimal income could be exposed to the full costs of litigation. This would mean no change from the current law.

James Thornton, CEO of ClientEarth says: “These proposals would fail to bring the UK in line with international law. Charities would still face having protection stripped from them, which means that the groups who are often best placed to bring environmental cases will be prohibited by the possibility of unfair legal bills.

“The reforms don’t go far enough, particularly in light of current proposals to slash legal aid. To most individuals and community groups £5,000 is a lot of money. We need to look at the whole system, including the provision of legal aid, to ensure that where environmental laws are broken, people can go to court to uphold them.”

ENDS

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Notes to editors:

• The system ClientEarth is calling for is “one-way costs shifting”. This means making defendants pay the claimant’s costs if the claimant wins, but exempts the claimant from having to pay the defendant’s costs if the claimant loses. Claimants bringing public interest environmental cases shouldn’t ever have to pay a defendant’s costs, irrespective of whether their case is successful or not, but if a claimant does bring a successful case, the defendant should pay the claimant’s costs. We have also called for environmental NGOs to be eligible for legal aid (which they currently are not).