Hard on the heels of the UN-ECE Aarhus Compliance Committee (see my previous post), Lord Justice Sullivan’s Working Party on Access to Environmental Justice has similarly condemned the current system under which judicial review claimants face an onerous costs burden when they advance claims which do not ultimately succeed.
The Working Party reported initially in May 2008 on access to justice in environmental cases, and was critical of the current costs regime. Its current focus is rather narrower that the recent conclusions of the Aarhus Compliance Committee, but potentially more effective thanks to that focus. It reviews the rather fuzzy case-law on Protective Costs Orders, fashioned by the judges to help Claimants against unlimited costs liabilities. The report can be read here.
The report acknowledges that the test for the grant of a PCO in such cases ultimately comes down to judicial discretion. That, says the ECJ in C-427/07 (Commission v. Ireland), is inadequate when measured against the standards required by the Aarhus Convention that environmental litigation not be prohibitively expensive. The Court of Appeal in Morgan has also made it clear that it is reluctant to develop PCO case-law further – this, it says, is for Parliament or the Civil Procedure Rules Committee.
So, based upon these cases, PCOs are not the way forward, says the Working Party, or at least not without some specific legislative intervention. They do not deliver sufficient certainty to those considering whether to risk their money on an administrative challenge, and they generate their own satellite litigation.
Where then, asks the Working Party? QuOCS, or for those not au fait with Jackson-speak, Qualified One-way Costs Shifting, is the answer. The Claimant does not pay if he loses. The Defendant pays if the Claimant wins. Hence, the one-way shift.
In effect, the Working Party adopts the substance of the proposal, made by Jackson LJ in his January 2010 review of Civil Litigation Costs, that costs in all judicial review cases should be determined by QuOCS. Various reasons are advanced for this, but the major one is the requirement to obtain permission for judicial review, which operates as a potent filter against duff claims. Hence, once a claim gets permission, it is not unreasonable to accept that the traditional costs rules may be modified – in order to meet the requirement of the Aarhus Convention that such proceedings not be prohibitively expensive.
Like many things, there is an exception to this proposed rule in favour of claimants. Jackson suggested that the exception should apply where it was reasonable to make the claimant pay – adopting wording used for many years in the legal aid legislation. Sullivan cogently points out the difficulties with the Jackson wording. Ultimately, it brings one back to judicial discretion, and the inability of this discretion to comply with the Aarhus obligations. In particular, application of such a test away from the context of impecunious legally-aided litigants would involve time-consuming and expensive consideration of the means of parties after the case but before their liabilities are determined. This is the wrong way round. Many people would be prepared to bring sensible challenges as long as they knew the downside before they started. Telling them that (a) they have the benefit of QuOCS but (b) they do not keep it if it is reasonable for them to pay the defendant’s costs achieves little comfort except for the true gambler.
This conclusion of the Working Party was perhaps guided by some of the problems thrown up by the case of R (Garner) v. Elmbridge BC [2010] EWCA Civ 1006, decided at the end of July and very shortly before the Working Party reported. Sullivan LJ, presiding in the Court of Appeal, was faced with a proposed means inquiry as to whether the claimant should get the benefit of a PCO. The Court decided that the question was principally an objective one, namely whether claimants in general were reasonably deterred from mounting the challenge, rather than looking at whether this claimant was likely to be deterred. The Court was also diffident about pronouncing on the Aarhus issues shortly before Aarhus itself did so (their provisional findings followed within a month) and also before a similar issue reached the Supreme Court via Edwards v The Environment Agency and Others [2006] EWCA Civ 877.
Sullivan’s proposal is that the claimant should not pay the other side’s (or sides’) costs in a claim for judicial review unless the claimant “has acted unreasonably in bringing or conducting the proceedings.” This gets the balance right. Means become irrelevant. In a typical case where a claimant gets permission to seek judicial review, it will be mighty difficult to show that he or she was unreasonable in proceeding with the claim if a High Court judge, after consideration of the defendant’s case in its acknowledgement of service, has thought that the case is properly arguable. One can conceive of cases where there has been gross non-disclosure to the Court and to the defendant but these will be rare indeed.
But, as Sullivan and his team acknowledge, this change towards a QuOCS regime should not be done or undone by incremental judicial pronouncements. It involves a rule change, under which the costs rules in CPR 44 are amended. Equally, as Jackson and Sullivan recommend, this change should not limited to environmental cases where the change is driven by Aarhus. Rightly, they, and the Court of Appeal when considering PCO applications, have been unwilling to create some special environmental costs rules when the costs deterrent problem applies right across the range of judicial review. The prospect of sterile arguments about whether a claim is an environmental one must have deterred any contrary idea.
As observed before, any such reform will not be high up on the governmental hit list. However, events are conspiring against the status quo. The Aarhus Committee are disapproving. Leading members of the Court of Appeal are sympathetic to the costs problem. The Supreme Court will be hearing an appeal on Aarhus principles shortly. Perhaps the moment has come to bend to rather than resist this pressure.
Read more:
- More posts on environmental law
- 31 Aug 2010 Environmental judicial review is “prohibitively expensive”, uncertain and insufficient
- 28 March 2010 European Commission warns the UK about unfair cost of challenging environmental decisions
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