The UK High Court has told the government that rules in relation to environmental litigation must be changed in order to protect applicants.
The case followed recent amendment to rules of litigation in environmental cases, which effectively undid the rules brought about in 2013 to cap applicant costs to £5,000 (£10,000 for applicant companies) in line with) of the Aarhus Convention. The new rules gave the courts broad discretion to vary the costs to the applicants, who were then also obliged to give a full disclosure of their finances. Many NGOs felt that the uncertainty caused by the ability to vary costs could discourage people from taking up environmental litigation.
Although the Court did not find that the new rules offended EU law, the Court did concede that the only way for the system to be effective was that if a variance was to be made to the applicant’s costs, it should be done at the earliest possible stage of litigation. Without such certainty, the Court said, it would be prohibitive for the applicant to launch litigation. This means that costs will be decided at the very beginning of litigation and fixed for the duration of the case; the defendant would not be able to have the costs amended after this point.
On the subject of a private hearing for financial matters, the Court pointed out the chilling effect a public hearing on financial matters could have on applicants. It also pointed out that much of the financial information being shared at these hearings would be confidential and it would be inappropriate to air them in public. The Court therefore concluded that the rules should have included provisions for private hearings in relation to the airing of confidential financial matters.
Click here for the full judgement in the case of RSPB, Friends of the Earth & Client Earth v. Secretary of State for Justice.
Click here for a previous Bulletin article on the case.