Archived press release

Senior Judge Calls Time on Environmental Injustice

15 October 2004

In an important judgment today, a senior judge recognised the problem facing citizens wanting to go to court to protect the environment but who are unable to do so because of the fear of having to pay potentially huge legal costs to the other side if unsuccessful.

Speaking at the end of his judgment Lord Justice Brooke in the Court of Appeal called for a study into the fate of litigants who are not able to obtain legal aid and who therefore risk having to pay very high costs to the other side if they are unsuccessful. Lord Justice Brooke stated that the current rule by which the loser pays the winner's costs "may be a potent factor in deterring litigation directed towards protecting the environment from harm".

Friends of the Earth recently joined forces with other environmental NGOs to form the Coalition on Access to Justice for the Environment (CAJE) [1] which is working to ensure that access to justice in environmental cases is "fair, equitable and not prohibitively expensive" in line with the Aarhus Convention. [2]

A recent report published by the Environmental Justice Project and referred to by Lord Justice Brooke, found that respondents believed that "the current costs rules represent the single largest barrier to environmental justice" [3].

Labour explicitly recognised this problem and promised to deal with it when in opposition [4]. After seven years in power no action has been taken.

Friends of the Earth's Legal Adviser Phil Michaels said:

"For a long time it has been recognised that the rule which requires an unsuccessful litigant to pay the winner's legal costs is a huge deterrent to people taking court action to protect the environment - as a result the environment suffers and communities are disempowered. This rule is of no benefit to the environment or the public and puts the UK out of step with other countries around Europe and the rest of the world. The fact that such a senior judge has explicitly recognised the problem is encouraging news for all those who are concerned with using the law to protect the environment. We will want to see now how the government respond to this call from the such a senior member of the judiciary."

Notes

[1] CAJE is currently made up of the Environmental Law Foundation, Friends of the Earth, Greenpeace, RSPB and WWF

[2] The Aarhus Convention on Access to Information, public participation in decision-making and Access to Justice in Environmental matters, 1998, has been signed by the UK and by the EU and came into force in October 2002. It requires that access to justice in environmental matters be "fair, equitable and not prohibitively expensive."

[3] www.wwf.org.uk/filelibrary/pdf/envirojustice.pdf (PDF format)

[4] Ten years ago this autumn the Labour Party in opposition published their landmark statement of environmental policy ( "In Trust for Tomorrow"). The 1994 policy statement explicitly recognised that "the traditional cost rules create a great disincentive to legal proceedings" and called for "revised cost rules" so that "where the case is a public interest one, unsuccessful plaintiffs will not be made liable for the costs of the defendant."

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Published by Friends of the Earth Trust