Judicial review reforms may change as UK loses on 'prohibitively expensive'

This entry reports on an EU judgment on whether the UK complies with the law on environmental litigiation not being 'prohibitively expensive'.

Yesterday, judgment was given in the case of the EU Commission v the UK (not a unique case name, so you'll need reference C-530/11). The judgment can be found here (thanks to Landmark Chambers for putting it on their website). Here is a summary.

Because of the Aarhus convention on public participation in environmental decision-making, there is a thread running from that convention through EU law to UK domestic law that bringing claims cannot be 'prohibitively expensive', thereby discouraging public participation. Indeed, the judgment says 'members of the public and associations are naturally required to play an active role in defending the environment'. Being prohibitively expensive in this sense boils down to the risk of having to pay a substantial amount of the other side's costs if you lose.

The EU Commission took the UK to court over allegations that it was not guaranteed that claims would not be 'prohibitively expensive'. Yesterday's judgment agreed with the Commission (although said some of its allegations lacked evidence) and declared that the UK had not transposed the directive (2003/35/EC) correctly. Ireland and Denmark (home to Aarhus) came along to support the UK but to no avail.

The reasoning in a nutshell was that although it was the case that in practice due to various rules, conventions and case law, claims would probably not be prohibitively expensive, there was no guarantee that they wouldn't be: 'it is not apparent ... that national courts are obliged by a rule of law to ensure that the proceedings are not prohibitively expensive for the claimant'.

Perhaps the key paragraph is 57 in the judgment. One of the reasons for there being no guarantee was that a public interest test is imposed (although may have been since been disapplied by case law), which would filter out some claims that might therefore be prohibitively expensive to keep going on, when there was no such qualification on the prohibitively expensive test. I will skip swiftly over paragraph 58 which says that the issue is of particular note in the UK because of high lawyers' fees.

Implications

This has three main implications that I can see. First, an explicit rule will have to be introduced for courts to follow requiring costs decisions to ensure that environment-related (including planning) claims are not prohibitively expensive at all stages.

Secondly, the current reform of judicial review procedure will have to take this judgment into account (as it itself acknowledges) and this may mean that environment-related claims and other claims have to be dealt with quite separately. The placing of financial disincentives on bringing claims will have to be looked at in particular. Perhaps the new Planning Court could be responsible for all such claims as a natural separation that is already on the cards.

Thirdly, judicial reviews of environmental decisions, including decisions on nationally significant infrastructure projects under the Planning Act 2008, are more likely to be brought since the challengers will have more predictable (and lower) exposure to costs.

The UK has to pay the Commission's costs of the case. I hope they aren't prohibitively expensive.