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01 Mar 2017

The rising cost of environmental law

Posted in Blog posts

WWT’s Head of Public Relations & Campaigns, Peter Morris, reflects on new court rules in cases where the environment might be threatened:

If you want to fight a new development on your doorstep through the courts, on environmental grounds, your potential costs have just got a lot more expensive. This affects you if you are a local resident wanting to protect your patch from any planned development, for example a new road or new power station proposed near your house.

As of today, the Government has scrapped the £5,000 fixed costs cap, if you lose your fight and are left having to pay for the winning defendant’s costs. The cap had been introduced in 2013 to try to avoid the UK falling foul of European law.

Before the cap, a developer could intimidate you and local residents by simply threatening to hire expensive lawyers and consultants. This made the financial risk so high that people were discouraged from taking cases to court in the first place, for fear of losing and facing an unpayable bill for the other party’s costs.

The European Commission warned the UK that this approach blocked access to justice for environmental challenges, so the UK introduced the £5,000 costs cap. But as of today, the UK has removed it again. It argues its new costs system* is EC compliant. Opponents say the UK has put itself back at greater threat of being fined by the European Commission. (Well done to the likes of Client Earth for keeping this issue under scrutiny)

Timing

The UK Government’s move begs the question, why now? In answering that, it’s worth knowing that European infraction proceedings against Member States take years to bring. Which means in two years’ time, when the UK leaves the EU, the EU will be powerless to start new proceedings.

Instead, the only body the UK Government will be answerable to for this issue will be the compliance committee for the international treaty on which the European law is based. But the “compliance committee” has as much teeth as it sounds. It has no power to issue binding decisions, let alone punishments.

Added to that, as always, there is a financial incentive to making the change quickly…

Who benefits?

So why scrap the costs cap?

The big financial incentive lays with the developers, looking to build a big new construction on your doorstep that risks causing environmental damage. It will be a lot cheaper for them if they don’t have to defend a court case, or even worse, lose the court case and have to shelve the project.

So who is the most common developer/defendant in these cases? It’s the UK Government and its various agencies, who build big projects like prisons, railways or airports. Yes, the Government itself can save a lot of money and trouble by making these changes to the rules which affect the cases it defends.

Of course it’s worth remembering that the Government is funded by the taxpayer and has a duty to protect the taxpayer’s money. Unmeritorious court challenges drain taxpayers’ money, both through the Government and its agencies needing to defend them, and also due to the cost of providing the publicly funded courts to hear the case. That money could be better spent by the Government on hospitals, social care, servicing the national debt and – ironically – environmental protection.

The two big issues

Like many legal balances, there is a legal / access to justice issue here, and an underlying issue in the real world.

The legal issue is whether upping the financial risk really weeds out unmeritorious cases that waste time and money that could better be spent elsewhere. It obviously will to an extent, otherwise there would be no stopping anyone taking a blind punt.

But beyond a basic level, if challenges stall due to the financial risk rather than the legal justification, then surely access to justice is compromised, which leaves injustice unchallenged?

The underlying issue in the real world is that it will be more difficult for you to use environmental law to protect your local landscape and wildlife. Money has taken precedence over the natural world.

The Government has committed to making sure as much European environmental law as possible is still in place after Brexit. But if it is more difficult to apply that law in the courts, then it rather defeats the point.

*With the £5,000 costs cap scrapped, instead new rules will allow judges to award bespoke costs protection based on ability to pay, but only after the defendant has already incurred costs which may be considerable – which means you’re already exposed to financial risk before finding out what those costs are, or whether/how far the judge might protect you from them. The Government has stated it would be exceptional for anyone to receive more than the current £5,000 costs cap, which means you will almost definitely receive less, assuming you receive any cap at all.

To apply for costs protection, you’ll have to disclose your financial position (but the defendant doesn’t have to). The judge won’t take into account that you have to pay your own legal fees too, which can escalate if further hearings are needed. The defendant can apply at any time during the case to have your costs protection (if you received any) reduced – leaving you very uncertain at the outset as to what your final costs might be. It’s worth noting some people may be eligible for Legal Aid in some cases.

Read the Government’s full position and a full description of the changes here.