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Costs recommendations help access to environmental justice

Jan 20, 2010

Further information
Vicki Elcoate

The UK Environmental Law Association(1) has welcomed the recommendations of the Jackson Review on Costs(2) which puts environmental claims on the same footing as others.

One of the main recommendations of the report is that in many cases someone who brings a legal challenge should no longer risk paying for the costs of their opponent if the other side wins. This risk puts off many people from bringing environmental cases – the so-called “chilling effect”.

In a recent example, local residents challenging a smelly composting site, near Bristol, in a private nuisance action faced a £25,000 legal bill for the costs of the other side.

“We welcome the simplicity and overall effect of the proposed qualified one-way costs shifting in judicial review cases. UKELA has argued for a uniform approach to costs in judicial review rather than different rules for environmental cases and we’re pleased that this was accepted in the final report which was published last week”, said Richard Kimblin, convenor of UKELA’s environmental litigation working party.

“The result is that no claimant will be exposed to an adverse costs order beyond their means for bringing a challenge to a decision of a public body which affects the environment. The so-called ‘chilling-effect’ of adverse costs would be removed and all such claimants would be put on a similar footing, whether legally aided or not”, said Mr Kimblin.

In general, defendants would have to bear their own costs whatever the outcome. Litigation costs to public authorities and Government would, therefore, increase. Also, it seems reasonable to expect the number of cases to increase if the ‘chilling effect’ of adverse costs orders is removed.

However, in many cases and for some parties, the position is not greatly changed from the status quo: costs were never recoverable against a legally aided claimant and costs were generally not available to an interested party.

Those with substantial means who bring unsuccessful challenges would be exposed to adverse costs orders.

UKELA expects the recommendations to be broadly effective in promoting access to environmental justice. It doesn’t open the floodgates for cases as there would still be a filtering mechanism at the permission stage in judicial review, so unarguable cases are not permitted to proceed.

So far as nuisance actions are concerned, there is some understanding in the Jackson Report that nuisance claims can give rise to significant costs claimed against householders. To deal with that, the Jackson Report supports widespread use of before the event insurance on householder insurance policies to cover costs to £100,000.

The recommendations of the report will now be considered by the Government, which will publish its intentions in due course.

Notes to the editors:

The final report of the Review on Civil Litigation Costs by Lord Justice Jackson can be found here http://www.judiciary.gov.uk/about_judiciary/cost-review/jan2010/final-report-140110.pdf

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