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The UK has always enjoyed a respected track-record when it comes to consulting the public. Up until five years ago, the case for legislative proposals (and amendments) would be supported by statistical data, an informed narrative, or both. You may have noticed that consultation periods are now considerably shorter (and sometimes dispensed with altogether), but perhaps more worryingly, there appears to be an emerging trend for far-reaching and detrimental change to be advanced in the absence of seemingly any evidential basis.

December 2015

In 2013, after a decade of domestic and international legal action, the Government introduced bespoke costs rules for environmental cases. Up until then, prospective claimants approached the courts with an open cheque book, so the introduction of fixed limits on the liability for the defendants’ legal costs on losing a case offered many claimants access to environmental justice for the first time in years.

However, in September 2015, these relatively new rules were put at risk in a number of ways with the launch of a Ministry of Justice (MOJ) consultation to amend the costs rules for environmental Judicial Reviews (JR). Firstly, costs protection would only apply where a claimant has obtained permission to proceed with an application for JR, thus potentially exposing them to prohibitively expensive legal fees in the interim. Secondly, defendants (and the court of its own motion) would be allowed to challenge the level of the caps on adverse costs liability if they believed the claimant could afford to pay more. Such challenges would be facilitated by the requirement for the claimant to submit a schedule of financial resources specifying third-party support to the court when submitting an application for JR. The proposals also include doubling the current fixed caps of £5,000 for individuals and £10,000 in all other cases to £10,000 and £20,000 respectively and restricting the availability of interim injunctive relief.

These proposals gravely misunderstand the costs facing prospective claimants – including members of the general public - when contemplating JR. The caps on adverse costs liability do not represent the claimant’s total costs liability – they must also pay the court fee (just under £1,000) and their own legal costs, which on average total around £25,000. The total current costs exposure of £31,000-£36,000 is already prohibitively expensive for many claimants, particularly individuals.

Link’s response to the proposals was supported by eighteen of its members and one partner organisation. By way of contrast to the MOJ consultation paper, Link’s response was informed by a detailed analysis of the data on environmental cases. It urges the Government to withdraw these unwarranted and damaging proposals in order to avoid yet more prolonged judicial and administrative scrutiny at domestic, European and international levels.

Carol Day

Vice-Chair of Link's Legal Strategy Group

The opinions expressed in this blog are the author’s and not necessarily those of the wider Link membership