Press release
UK found in breach of EU 'access to environmental justice' law

The Coalition for Access to Justice for the Environment (CAJE) [1] today welcomes the historic judgment of the European Court [2] on the UK’s non-compliance with EU law on costs in environmental legal proceedings, after a ten year battle by legal campaigners. The case arose as a result of a complaint lodged with the European Commission by CAJE in 2005.

Both EU law and the UNECE Aarhus Convention oblige Member States and contracting Parties to ensure that environmental legal proceedings are “not prohibitively expensive” [3].  This means that ordinary citizens and civil society groups should be able to afford to go to court to challenge the decisions of public and private bodies that threaten the environment. Today’s court ruling may mean that the Government may have to go further to make access to justice affordable for ordinary citizens.

In anticipation that the European Court would find against it, the Ministry of Justice introduced a new costs regime for environmental cases in April 2013.  This judgement confirms that the Government cannot roll-back on the new costs regime as the European Court requires claimants to have certainty regarding their costs liability.

The judgment has significant implications for the Government’s ongoing attack on Judicial Review (JR), which often represents civil society’s last opportunity to ensure the decisions of public bodies are lawful. In the last eighteen months, the Ministry of Justice has announced a series of measures to undermine the process of JR [4], which it says acts as a “brake on economic growth” and is used for “PR purposes, or as a tactical device to cause delay” [5]. While many of the Government’s harmful proposals apply across the board, the Government is now unable to unravel improvements in introduced to the costs regime for environmental cases in April 2013 [6]. The current regime also makes it possible for the court to grant an injunction to suspend projects that may damage the environment without requiring claimants to compensate the court [7].

This judgment confirms that domestic courts cannot look exclusively at the financial means of individual claimants but must also carry out an objective analysis of the amount of the costs. In deciding whether a figure would be “objectively unreasonable”, the court must take a number of other factors into account, including whether the claimant has reasonable prospects of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and whether public funding or other costs protection schemes are available.

Speaking on behalf of CAJE, Solicitor Carol Day said:

"This judgment confirms that the Government’s sustained attacks on Judicial Review cannot extend to environmental claims and that, if anything, it must go further to ensure that the public can exercise their democratic right to go to court to defend the environment”.

Ms Day continued: “There is simply no evidence to show that Judicial Review is a brake on development or is being abused by groups to delay infrastructure projects – it is a vitally needed part of any democracy to ensure that the decisions of public bodies are lawful”.

Until the improvements to the costs regime in 2013, individuals and groups applying for JR had not been able to rule out the possibility that they would be ordered to pay tens of thousands of pounds to the other side - usually the Government - if they lost. In today’s judgment, the European Court has taken its final step towards ensuring that the risk of paying a public body’s legal costs no longer poses a substantial obstacle to environmental justice in the UK and across the territory of the EU.

ENDS

Notes to Editors

1.           The Coalition for Access to Justice for the Environment (CAJE) comprises Friends of the Earth, Greenpeace, Royal Society for the Protection of Birds, WWF, Campaign to Protect Rural England, Environmental Law Foundation and the Living Space Project. This press statement is made on behalf of Friends of the Earth England Wales and Northern Ireland, Friends of the Earth Scotland, RSPB and WWF. 

2.           The case reference is Commission v UK (C-530/11) and the judgment can be found here.

3.           The UNECE Aarhus Convention seeks to ensure a minimum standard with regard to access to environmental information, public participation in decision-making and access to justice in environmental matters across the UNECE region. The UK ratified the Convention in 2005. Provisions of the Aarhus Convention concerning access to environmental justice are imported into EU law via the EC Public Participation Directive (2003/35/EC). Article 3 of the PPD requires that judicial or administrative procedures in respect of Integrated Pollution and Prevention Control (IPPC) and Environmental Impact Assessment (EIA) must be “fair, equitable, timely and not prohibitively expensive”. 

In 2005, CAJE submitted a complaint to the European Commission on the basis that the UK's judicial system in respect of these procedures is prohibitively expensive for the vast majority of concerned individuals, community groups and NGOs. The European Commission’s infraction proceedings involve three stages: (1) a letter of formal notice, in which the Commission sets out how a Member State has failed to comply with the requirements of EC law; (2) a Reasoned Opinion – a more detailed examination of the issues; and (3)  referral the case to the European Court of Justice.  In this case, the Commission sent the UK a letter of formal notice in December 2007 and issued a Reasoned Opinion in March 2010.  The case was referred to the European Court in April 2011 and a Hearing held in 2013. Advocate General Kokott’s Opinion was published on 12th September 2013 (available here)

4.           In July 2013, the Ministry of Justice reduced the time limits for bringing a JR in planning cases from three months to six weeks, removed the right to an oral renewal in cases assessed by a judge as “totally without merit” and introduced a new fee for oral renewal of a permission hearing (initially £215). On 4th February 2014, the Ministry of Justice published its response to a consultation on further reforms to JR an also published the Criminal Justice and Courts Bill to give effect to its proposals.  These proposals include: (1) a presumption that interveners bear any costs arising to the parties from their intervention (despite acknowledging that “interveners can add value, supporting the court to establish context and facts”); (2) requiring applicants to provide information on funding at the outset of the case and requiring the courts to have regard to this information in order to consider making costs orders against those who are not a party to the JR; and (3) abolishing the existing ‘Mount Cook principles’ (whereby a claimant’s liability is generally limited to the defendant’s costs of preparing the Acknowledgement of Service), thus requiring unsuccessful claimants to pay the full costs of an oral renewal hearing. In the planning sphere, the Government will establish a Planning Court in the High Court, with a separate list under the supervision of a specialist judge. CAJE has consistently drawn attention to the absence of any empirical evidence to support the assertion that JR acts as a brake on economic recovery and notes that despite significant opposition to virtually all of the proposals, the Government has proceeded with most of them (CAJE responses available on request).

5.           See Foreword by the Lord Chancellor and Secretary of State for Justice Chris Grayling.

6.           In 2011, the Aarhus Convention Compliance Committee found the UK in breach of Article 9 of the Convention because it had failed to ensure that environmental litigation in the UK is not "prohibitively expensive". Similarly, in 2011, the UK Supreme Court referred questions on the meaning of ‘prohibitive expense’ to the Court of Justice of the European Union (CJEU) in the case of ‘Edwards’ (The Queen on the application of David Edwards and Lilian Pallikaropoulos) v (1) the Environment Agency (2) the First Secretary of State (3) the Secretary of State for the Environment, Food & Rural Affairs (Case C-260/11). Judgment of 11th April 2013 available here.

7.           The Court also determined that requiring claimants to provide a financial guarantee (a “cross-undertakings in damages”) for the Court to grant interim relief, for example that construction is not allowed to start until the outcome of the case is known, constitutes an additional element of uncertainty and imprecision on the requirement that proceedings shall not be prohibitively expensive. In the past development has been allowed to proceed before the outcome of the Court proceedings are known resulting in success in the Courts not necessarily preventing the environmental damage being done. This judgment will ensure that cases that are won in the Courts will also be won on the ground.

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Published by Friends of the Earth Trust