ClientEarth seeks litigants for air pollution damages

Environmental lawyers ClientEarth are planning to take an unprecedented step by forcing the government to compensate individuals for the UK’s failure to meet air quality limits.

ClientEarth is working with the law firm Hausfeld, with which ClientEarth has collaborated before. A campaign to seek claimants launched in June, with a webpage inviting people to come forward with their stories. ”We want to hear from people who think their health has been affected by breathing dirty air,” said ClientEarth air quality lawyer Katie Nield at yesterday’s Institute of Air Quality Management’s annual conference.

Seeking compensation for affected individuals, rather than judicial reviews is a “really new, novel” angle of legal attack for the environmental law group, she added, and could be a powerful way to push for change.

Listing a litany of medical conditions associated with breathing dirty air, the webpage for the litigation states, “We are all affected by toxic air, but some – especially children, older people, and people on low incomes or from ethnic minorities – are more vulnerable or affected than others. This is not fair – and we are taking action to fight back”.

“We believe that individuals who are suffering as a result deserve justice and the chance to push for change. We want to make sure that people whose lives have been impacted by the toxic legacy of dirty air are compensated for the harm they have suffered and can push for action to better protect them and others going forward,” it adds, calling for such individuals to come forward.

The potential challenge would build upon the government’s admission in the High Court that it had failed to comply with EU limits on nitrogen dioxide – obligations that the Court of Justice of the EU ruled in March had been breached “systematically and persistently”.

But the solicitors also refer to the revision of the death certificate for Ella Adoo-Kissi-Debrah, which demonstrated that evidence can be strong enough to link an individual’s exposure to air pollution to illness. They say that people with conditions such as asthma and chronic obstructive pulmonary disease would be most likely to succeed in making a claim.

Nield explained that the case, should it go ahead, is based on rights established in EU case law. So-called Francovich damages are available to individuals where an EU member state breaches or fails to implement EU legislation, where the error is sufficiently serious and there is a direct link to damage sustained by the injured party.

A comparable right does not exist in UK common law and it was essentially removed by paragraph 4 of schedule 1 to the European Union (Withdrawal) Act 2018. However, it did offer a small window of opportunity to pursue new claims. “Proceedings begun within the period of two years beginning with exit day so far as the proceedings relate to anything which occurred before exit day,” may be launched, says a further schedule.