Prohibitive legal costs and government reforms could be behind fall in environment judicial reviews claims, foundation warns

A report from the Environmental Law Foundation (ELF) has called for reforms to costs rules in environmental judicial reviews after finding the number of environmental legal challenges has fallen from a peak of 180 cases a year to around 84.

Based on Ministry of Justice data obtained under the Environmental Information Regulations 2004, the report suggests that the reduction may be due to the high cost of legal action and the impact of legislative changes introduced by the Government to deter claimants from challenging public bodies.

Some environmental cases, such as judicial reviews, benefit from special costs rules preventing individuals, community groups and NGOs from being exposed to high legal costs when they lose a case.

The starting point for unsuccessful individuals is that they are liable for up to £5,000 of a public body's legal costs, whereas community groups and NGOs pay up to £10,000.

But changes to the costs rules in recent years allow defendants and Interested Parties (frequently the developer promoting a scheme or project) to apply to increase these default caps.

The report cited a recent case brought by ClientEarth, where the claimant's cost cap was increased from £10,000 to £25,000.

"Case studies from ELF illustrate that despite being advised by lawyers that they have arguable cases, sometimes with good prospects of success, individuals and community groups sometimes feel unable to bring legal claims for fear of the costs risks," the foundation noted.

To address this, the report recommended that England and Wales adopt the same costs model as Northern Ireland, in which the default cap can be varied downwards where a claimant is of limited means but cannot be varied upwards, which provides claimants with advance certainty as to the legal bill they will be facing.

The report noted that since 2016 there has been a decline in success rates for environmental cases at the permission stage.

It also said that the permission stage "can now feel like a full-blown hearing", referencing a recent case brought by Wild Justice against the water services regulator Ofwat that was held to be unarguable following two full days of legal argument in the High Court.

The report concluded that around 10% of environmental judicial reviews are ultimately successful for the claimant. As the success rate for all judicial reviews generally is around 3%, environmental cases continue to perform well when compared to JRs as a whole, it argued.

Emma Montlake, Joint Executive Director at the ELF, said: "ELF receives significant numbers of requests for assistance from communities contemplating judicial review of environmental decisions. It is a hard fact that despite the Aarhus costs protection, ELF sees many claims not being pursued, despite there being grounds to do so, as the costs of an environmental challenge remain a major hurdle for ordinary people.”

She added: "Public interest cases are different as they are being brought in the interests of the wider public good, for the protection of the environment, there is no personal gain. They frequently involve people motivated by a love of their local nature. In ELF's experience access to environmental justice is not being properly served."

Adam Carey