UK facing legal action over cost rules which deter citizens from court

New rules coming into force today (28 February) will make it virtually impossible to bring a public interest case to protect the environment.

ClientEarth, Friends of the Earth and the RSPB have started legal proceedings against the Lord Chancellor and Secretary of State for Justice to challenge what the organisations believe to be unlawful new costs rules for environmental cases.

The new rules weaken financial protection for people bringing a case, meaning they face unspecified legal costs in return for going to court to protect the environment. Judges will be able to increase the costs cap at any stage, making it impossible to know how much a case will cost from the start.

ClientEarth CEO James Thornton said: “The new rules spell disaster for the environment. With no certainty on costs, who will put their finances, perhaps even their house, at risk to bring a case? Individuals and campaigners need financial certainty before they bring a case in the public interest. After Brexit, this will become even more important, because the EU won’t be there to make sure our government is following its own environmental laws.

“It is ironic that we have to bring this case before the court rules change, because the financial risk introduced by the new rules is too high to bring it afterwards. The danger of the government’s plan is clear and it must be changed so people can still go to court to protect the environment.”

An attack on environmental cases

Last week, the House of Lords statutory instruments committee, which reviewed the rules, concluded that:

“Although the Ministry of Justice states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts.”

This finding supports the view of campaigners that the government’s new rules will make it prohibitively difficult for individuals and environmental groups to bring environmental cases of wide public interest. This includes cases like ClientEarth’s challenge against the UK government over toxic air pollution.

Not only is this a huge disincentive to bringing a public interest environmental case, we also say that it breaches the law.

A UN committee charged with reviewing access to the court in the UK also criticised the new rules in a report released on Friday (24 February), saying the government is not yet fulfilling its legal commitments, as a signatory of access to justice law the Aarhus Convention.

In a joint statement, ClientEarth, Friends of the Earth, and the RSPB said: “Charities and NGOs are the main way people can mount an effective challenge to government decisions. We represent lots of concerned individuals who have chosen to pool their resources with us so we can defend nature on their behalf. We are an alliance of thousands of individual citizens who would otherwise lack the means and resources to take an issue to court. Access to justice, on equal terms, is everyone’s right.”

The three NGOs have applied for permission to sue the government over its unlawful plans. The High Court will consider the application and we expect a response in the coming months.