Local Government Lawyer Insight February 2018 LocalGovernmentLawyer 18 The challenge A number of charitable groups invested in environmental decisions (eg. the Royal Society for the Protection of Birds) pursued a judicial challenge of these provisions in R. (RSPB and others) v Secretary of State for Justice [2017] EWHC 2309 (Admin). They contended that the rules were in breach of the Aarhus Convention. The challenge was pursued on three grounds, namely: ● That the provisions meant the costs of litigation were no longer 'reasonably predictable', which would dissuade parties from pursuing challenges and compromise access to justice ● That it was improper that parties had to disclose their financial resources in a public forum ● That the costs involved in bringing the claim had to be relevant to the assessment of whether the costs would be prohibitively expensive. Dove J found that the amendments to the CPR were not unlawful, however, he provided clarity on their application. As regards ground 1, Dove J held that where a protective costs order is to be challenged, it should be done in the acknowledgment of service. The level of costs should be determined at the outset of the claim, so that the claimant can know early in the process their potential costs exposure. As regards ground 2, the court found that where the claimant's financial resources were to be considered, the hearings should be in private with such information being kept confidential. This was to avoid “the chilling effect, which the prospect of the public disclosure of the financial information of the claimant and/or his or her financial supporters” could have. As regards ground 3, the Court found that the claimant's own costs were relevant to assessing whether the costs were prohibitively expensive. Following the ruling the law firm acting on behalf of the charitable groups claimed they had won “major concessions' from the government which 'make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.” In particular, as result of Dove J's judgment, the costs cap must be set at the permission stage of the proceedings; whereas previously it was understood that at any stage of the proceedings the court could vary the costs cap. Similarly, the Secretary of State for Justice has equally claimed success, on the basis that the amendments to the CPR have been upheld in substance, albeit their application might have changed. For practical purposes, the judgment confirms that the previously fixed costs cap can now be varied in judicial review claims. However, only time will tell as to whether the courts will typically be open to varying the costs cap in any appreciable manner. Moreover, in light of the need for hearings in private, it might be the case that the costs associated with arguing this point outweigh the savings made in varying the costs cap in any event At this stage there is potential for the High Court ruling to play out in a number of ways. Planning and environmental lawyers will watch with interest to see whether the amendments to the CPR have much difference in practice. Killian Garvey is a planning and environmental law barrister at Kings Chambers.