11 April 2013
The Coalition for Access to Justice for the Environment (CAJE) has today welcomed the judgment of the European Court  in the meaning of ‘prohibitive expense’ in environmental legal proceedings. The Court was asked to rule on the concept by the UK Supreme Court in the case of Edwards  and the judgment has significant implications for people attempting to use the law to protect the environment across the European Union.
Both EU law and the Aarhus Convention oblige Member States and contracting Parties to ensure that environmental legal proceedings are ‘not prohibitively expensive’ . This means that ordinary citizens and civil society groups should be able to afford to go to court and challenge the decisions of public and private bodies that threaten the environment.
The European Court held that domestic courts cannot look exclusively at the financial means of individual claimants but must also carry out an objective analysis of the amount of the costs. In deciding whether a figure would be “objectively unreasonable”, the court must take a number of other factors into account, including whether the claimant has reasonable prospects of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and whether public funding or other costs protection schemes are available.
Carol Day, solicitor at WWF and CAJE Coordinator said: “For far too long, legal action to protect the environment has been confined to either the very rich or the very poor, with the vast majority of concerned citizens powerless to challenge the decisions of public bodies. The judgment confirms that the Government must ensure the public at large can exercise their democratic right to go to court”.
Ralph Smyth, barrister at the Campaign to Protect Rural England said: “The Government says it wants local people to have a say in planning decisions. Yet, increasingly, due to weaknesses in national planning policy, these decisions are likely to be subject to legal challenge. The debacle over the new housing blocks that tower over ancient Port Meadow shows that without an effective remedy when things go wrong, having a say isn’t worth much. Today’s judgment should mean people can without huge financial risk challenge planning decisions that go wrong.”
Jake White, legal adviser at Friends of the Earth said: “The judgment marks a significant step forward in the campaign to ensure that people are not prevented from obtaining justice in environmental cases purely on the grounds of cost. Whilst that campaign is not yet won, this judgment nonetheless sends a message to governments across the EU that costs may not prevent people gaining access to the courts in these cases.”
Environmental groups in the UK have long argued that current court rules make access to justice unaffordable for people and groups who want to use the law to protect the environment . Until now, individuals and groups who take their case to the Courts have not been able to rule out the possibility that they will be ordered to pay tens of thousands of pounds to the other side – usually the Government – if they lose.
Research by the European Commission has also shown that the UK has one of the worst cost regimes for access to justice in environmental matters, and that the current costs rules represent a significant obstacle to access to justice in the United Kingdom .
Recent improvements to the costs rules for environmental cases in England and Wales which came into force on 1 April this year  do not go far enough. Proposals to cap the costs that individuals and environmental groups would have to pay to public bodies if they lose judicial reviews are too high and a cross-cap (which limits the amount that successful claimants are able to recover) will make it very difficult for individuals and civil society groups to find lawyers to represent them in environmental cases .
In today’s judgment, the European Court has taken further steps towards ensuring that the risk of paying your opponent’s costs no longer poses a substantial obstacle to environmental justice. The decision may mean yet further changes are required to the new rules the government has just introduced.
The judgment also suggests that the European Court will take a robust line against the UK in the forthcoming infraction proceedings arising from a complaint lodged by the Coalition for Access to Justice for the Environment (CAJE)  in 2005 .
Notes to editors:
1. The judgment can be found here.
2. The UK Supreme Court referred questions on the meaning of ‘prohibitive expense’ to the Court of Justice of the European Union (CJEU) in the case of ‘Edwards’ (The Queen on the application of David Edwards and Lilian Pallikaropoulos) v (1) the Environment Agency (2) the First Secretary of State (3) the Secretary of State for the Environment, Food & Rural Affairs (Case C-260/11).
3. The UK was obliged to implement EC Directive 2003/35/EC (the “Public Participation Directive” or “PPD”) by 25th June 2005. Article 3 of the PPD requires that judicial or administrative procedures in respect of Integrated Pollution and Prevention Control (IPPC) and Environmental Impact Assessment (EIA) be ‘fair, equitable, timely and not prohibitively expensive’. In 2005, CAJE submitted a complaint to the European Commission on the basis that the UK’s judicial system in respect of these procedures is prohibitively expensive.
The UNECE Aarhus Convention seeks to ensure a minimum standard with regard to access to environmental information, public participation in decision-making and access to justice in environmental matters across the UNECE region. The Aarhus Convention Compliance Committee has examined two complaints against the UK and, in 2011, found the UK to be in breach of the Convention because it had failed to ensure that environmental litigation in the UK is not “prohibitively expensive”.
4. See, for example: “Using the Law: Barriers and Opportunities for Environmental Justice” (Capacity Global) (2003); “Environmental Justice” Environmental Law Foundation, Leigh, Day & Co Solicitors and WWF-UK (2004); “Civil Law Aspects of Environmental Justice” Stookes, P. on behalf of ELF (2003), “Modernising Environmental Justice” Macrory, R. and Woods, M (2003); “Ensuring access to Environmental Justice in England and Wales” (Sullivan I) (2008) Working Group on Access to Environmental Justice, chaired by the (then) Hon Mr Justice Sullivan; “Costs Barriers to Environmental Justice” (ELF) (2009).
5. In 2012, the European Commission commissioned research on access to environmental justice in 17 Member States. The UK was ranked amongst the bottom four Member States on costs. The UK Report and a synthesis report can be found at the link below. The studies were commissioned in preparation for an EC Directive on Access to Environmental Justice:
6. These amendments were enacted in preparation for this case and separate infraction proceedings brought against the UK Government by the European Commission over the high costs of legal action in environmental cases.
7. CAJE’s detailed view on recent improvements to the costs rules in England and Wales – and CAJE’s response to recent proposals to narrow the scope of Judicial Review in England and Wales – are available upon request.
8. CAJE includes WWF-UK, Friends of the Earth, Greenpeace, RSPB, the Environmental Law Foundation, Capacity Global and the Campaign to Protect Rural England.
9. The European Commission’s infraction proceedings involve three stages: (1) a letter of formal notice, in which the Commission sets out how a Member State has failed to comply with the requirements of EC law; (2) a Reasoned Opinion – a more detailed examination of the issues; and (3) referral the case to the European Court of Justice. In this case, CAJE submitted a complaint to the European Commission in 2005. The Commission sent the UK a letter of formal notice in December 2007 and issued the UK with a Reasoned Opinion in March 2010. The case was referred to the European Court in April 2011 and a Hearing is expected later in 2013.
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