Judicial review costs and access to environmental justice

The Court of Appeal has fired a warning shot that the UK's procedures concerning costs in judicial review may not be compatible with the pan-European Aarhus Convention on public access to environmental justice. Its observations are likely to create some waves in Whitehall as the Government considers ways of handling environmental justice issues.

R on the application of Sonia Burkett v London Borough of Hammersmith and Fulham (Court of Appeal (Civil Division), [2004] EWCA Civ 1342, 15 October 2004) was concerned with the principles of assigning costs following litigation by the claimant over environmental assessment requirements in connection with a large urban development in Fulham.

The claimant was legally aided, and in 2002 had eventually won on a preliminary point of law in the House of Lords concerning the time-limits from which an application for judicial review should start where a grant of planning permission was involved (ENDS Report 329, pp 53-54 ). The case was remitted back to the High Court for full hearing in 2003, and the application was dismissed on the substantive issues.

The normal procedure in such cases is that the costs "follow the cause", implying that the losing party should pay all the other side's costs.

In this case, however, the House of Lords had held that the local authority should pay the claimant's costs in the Court of Appeal and the Lords in the proceedings concerning the preliminary issue of law. Following the 2003 hearing, the High Court held that the local authority was entitled to its costs from the claimant, but these must be set off against the costs which the House of Lords had ordered to be paid by the local authority.

Much of the case was concerned with whether the judge had a discretion to make such an order. The claimant was legally aided, and the dispute was therefore in reality between two sets of public funds - the local authority and the Legal Services Commission - against the background of the new statutory regime for legal aid introduced in 1999. The Court of Appeal was aware that the Commission faced acute funding pressures, as did local authorities.

In the event, the Court of Appeal held that the judge's order as to the costs and set-off fell within his discretion under the statutory scheme for legal aid and should therefore stand.

Lord Justice Brooke, Vice President of the Court of Appeal, accepted that the judgment might deter lawyers who would otherwise act for legally aided clients: "There can be no doubt that the present scarcity of public funding for such clients is inimical to the future potential of what used to be known as the legal aid scheme, but issues relating to public funding are for others to take."

The court, however, made an addendum to the judgement specifically relating to the Aarhus Convention, and these passages are likely to be of most interest to environmental lawyers.

The costs involved in the Burkett case were extremely high. According to figures before the Court of Appeal, for the preliminary issue on the point of law, the claimant's costs in the Court of Appeal and House of Lords were around £160,000, with the defendants' at £36,000. For the four-day hearing in the High Court on the substantive issue, the claimant's legal costs were nearly £28,000, and the defendants' around £33,000.

Under the Aarhus Convention, both members of the public with sufficient interest and non-governmental organisations are given the right to challenge the "substantive and procedural legality" of consent decisions concerning a wide range of specified projects.

The UK signed the Convention in 1998. At the time, the Government's thinking was that the provisions would be met by judicial review procedures, and that the liberal approach to standing requirements adopted by the UK judiciary would satisfy the Aarhus requirements in this respect.

However, the treaty also requires that such procedures be "equitable, timely and not prohibitively expensive."

The Convention came into force in October 2001, and although some EU countries such as Belgium, Portugal, and Poland have now ratified, it is understood that the UK will not ratify until the EU has done so. This is likely first to require agreement to the European Commission's proposed Directives on access to justice and on the application of the Aarhus provisions to EU institutions published last year (ENDS Report 346, p 56 ).

Lord Justice Brooke referred to the recent report of the environmental justice project (ENDS Report 350, pp 15-16 ), which noted that because of low profit margins in environmental cases there were few legal practices carrying out public interest litigation in the field.

"We would be troubled if the effect of our ruling on this appeal were left uncorrected by other means," he said, "because of the importance of maintaining the viability of the few legal practices which operate in the field of publicly funded environmental litigation."

But he went on to note that if the costs figures were in any way typical of the sums involved in litigating up to the highest level, "very serious questions would be raised as to the possibility of ever living up to the Aarhus ideals within our present legal system. And if these costs were upheld on detailed assessment, the outcome would cast serious doubts on the cost-effectiveness of the courts as a means of resolving environmental disputes."

In the immediate future, the Court of Appeal's observations may hasten the development of a so-called "Aarhus certificate". This would be granted by a judge on an application for leave to bring judicial review proceedings in cases raising issues of public importance, and would in effect provide that whatever the eventual result each side would bear its own costs, more akin to practice in the US.

But Lord Justice Brooke also questioned whether the ordinary courts are in any event the most suitable forum for handling public interest environmental litigation.

Last year's report on modernising environmental justice, commissioned by the Environment Department, suggested that a specialised environmental tribunal might be a more appropriate forum for determining third party appeals under the Aarhus Convention (ENDS Report 341, pp 3-4 ). The Burkett decision is likely to push a radical rethink on current structures for delivering environmental justice higher up the Government's agenda.

Richard Macrory, Professor of Environmental Law, University College

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