Key changes to the Protective Cost Order regime
(PCO) came into force on 28 February 2017, which
could directly limit the ability of individuals and organisations
to bring environmental-related legal challenges in England and
The PCO was introduced in 2013 in part due for the purposes of
implementing the Aarhus Convention and its requirement that public
bodies ensure that the public have access to procedures that are
not "prohibitively expensive" for challenging decisions
relating to the environment. For environmental-related proceedings,
adverse legal costs were capped to £5,000 for individuals and
£10,000 for organisations. Before these caps were introduced,
the risks of substantial adverse costs orders could deter
organisations from bringing public interest litigation. For
example, in 1998, WWF was ordered to pay the government's legal
costs of over £200,000 after losing its legal challenge
against the construction of a funicular up Cairngorm Mountain.
The government's changes, implemented through The Civil
Procedure (Amendment) Rules 2017 retain the same costs limits as a
starting point, but the court can depart from them if it is
satisfied that "to do so would not make the costs of the
proceedings prohibitively expensive for the claimant", and
that the costs would not "exceed the financial resources of
the claimant" or be "objectively unreasonable." In
practice, the court will carry out an assessment of the
claimant's financial resources in order to determine whether it
would be fair for the applicant to bear a more significant degree
In assessing the reasonableness of potential costs, the court
must consider the following factors: "the situation of the
parties; whether the claimant has a reasonable prospect of success;
the importance of what is at stake for the claimant; the importance
of what is at stake for the environment; the complexity of the
relevant law and procedure; and whether the claim is
The fixed caps had previously provided certainty of costs and
protection for third parties. Without the certainty afforded by
these fixed caps, claimant organisations will need to consider the
risks of adverse costs more carefully before launching legal
challenges, and will need to allow greater scrutiny of their
financial affairs through the court's means testing
It remains to be seen how the court will approach and interpret
these new rules, particularly with respect to the meaning of
"objectively unreasonable" costs and how the
reasonableness of costs may relate to the public interest at stake
in any particular case. This will be interesting where a
development project is consented to, on the basis of, for example,
an Environmental Impact Assessment, which concludes that the scheme
will not have a significant environmental impact, but a challenge
is then pursued based on the way a decision is made.
The Ministry of Justice has emphasised that these changes will
ensure that individuals are not expected to pay legal costs above
their means, reiterating that "legal aid remains available for
these cases". Despite this, a House of Lords statutory
instruments committee concluded on 3 February 2017 that
"people with a genuine complaint will be discouraged from
pursuing it in the courts." These changes have also been
criticised by a UN committee charged with reviewing access to the
courts in the UK – it was concluded that the government was
not yet meeting its legal obligations on access to justice under
the Aarhus Convention and this did not improve the position.
ClientEarth, Friends of the Earth and the RSPB have recently
launched a judicial review challenge of this decision and this case
will be heard in the coming months. In a joint statement, these
groups highlighted that charities and non-governmental
organisations are the main way in which people can mount an
effective challenge to governmental decisions, emphasising that
"access to justice, on equal terms, is everyone's
ClientEarth has also emphasised that under this new regime, it
would not have been able to bring a successful claim against the UK
government over air pollution. This enabled the organisation to
demand tougher measures from the government to improve air quality
in the UK.
Transitional arrangements are in place for environmental claims
already in the courts but any new challenges will fall under the
scope of this new regime. Any decisions on new applications for
PCOs will be instrumental in determining the true impact of this
regime change on public interest litigation relating to the
environment, as well as on access to justice more broadly.
This post was prepared with the assistance of Ei Nge
Htut in the London office of Latham &
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