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Turning tide: The Aarhus Convention and environmental justice

An Advocate General’s Opinion on costs in a case last week has cheered up environmental campaigners no end, writes Elizabeth Davidson. The otherwise unglamorous European Court of Justice case (about a cement works) foreshadows future legislative and judicial help for those who find themselves priced out of legal action.

Money acts as a powerful deterrent to environmental justice. For years, lawyers and environmental campaigners have warned how individuals either can’t raise the money to start legal action in the first place or (quite legitimately) fear they will lose the shirt off their back in legal costs if the other side wins.

Under EU Directives implementing the 1998 Aarhus Convention,MemberStates must ensure that environmental legal proceedings are ‘not prohibitively expensive’. TheUK has been slow to act, although in August it announced proposals to honour its obligations by replacing protective costs orders with costs caps in environmental cases inEngland. Individuals’ adverse costs would be capped at £5,000, while organisations would pay up to £10,000. Successful claimants would be able to claim back no more than £35,000. These proposals do not have universal support, and an implementation date is yet to be set.

Turning tide
However, the European Court of Justice case of R (on the application of Edwards and Pallikaropoulos) v the Environment Agency & Ors (Case C-260/11), referred from the Supreme Court, indicates the tide may be turning.

AG Kokott, delivering her Opinion on the meaning of ‘prohibitive expense’, said legal protection of the environment serves not just the claimant but the public interest, and therefore individuals ‘cannot be expected to bear the full risk in terms of costs of judicial proceedings up to the limit of their own capacity to pay if the proceedings are also, or even exclusively, in the public interest’.

She said both an objective and a subjective test could be used when assessing whether the cost was ‘prohibitive’. However, the subjective test would be based not on the individual’s financial means but on whether they have an ‘extensive’ economic interest in the outcome. If they stand to gain financially from the outcome then they should bear more risk.

Carol Day, solicitor at WWF, says:

‘Subjective and objective has become a real issue in the UK – a working party on access to environmental justice in 2008-2010 came up with the view that the test should be objective – you should assume that they are an ordinary member of the public of average means.

‘AG Kokott came up with an interesting new angle – that it is both subjective and objective but not in relation to their means, but in relation to their interest in the outcome,’ continues Day. ‘If they have an economic interest in the outcome then they should pay more, for example, if they are Tesco. It’s quite a novel way of looking at it. It’s different from anything being discussed in theUKat the moment.

‘It’s good for us, as an NGO which never has an economic interest in the outcome.’

Litmus test
The ‘Edwards’ case is a ‘forerunner’ of a more general case that the European Commission is bringing against the UK for failing to ensure costs are not ‘prohibitively expensive’. Both ‘Edwards’ and the general case, ‘Commission v UK’, were going to be joined together, until some member States, including Greece and Ireland, objected.

‘That is why this case is very interesting,’ says Day.

‘It is significant and gives a litmus test of how the court will respond in the more general case. The general case will go into more detail.

‘We sent case studies along with our application in that case, for example, we had a costs order against us of over £200,000 in a case on the Cairngorms. Some people had costs of tens of thousands. Some people had been chilled – they went to the Environmental Law Foundation and were told they had a good case but then dropped it when they found out how much it would cost.’

However, the AG’s Opinion is unclear in one respect – she says claimants should not bear the full risk. What does this mean?

Day says AG Kokott ‘seems to be suggesting some legal discretion’ whereas in previous cases the Court has emphasised the importance of legal certainty.

‘I would not be surprised if the full court overturns that part,’ she says. ‘People need to know where they stand and how much they may be liable for.’

Barrister and environmental law specialist, Richard Kimblin, of No 5 Chambers, says: ‘The important aspect of the Opinion is the relationship between objective and subjective assessment of people’s means.

‘The AG has approached it from the purpose of the Convention and Directive, which is to ensure environmental protection. If it’s just in the public interest then the court will take a more subjective approach, so that will be of interest to NGOs.

‘Likewise the AG has been very practical in looking at the reality of bringing litigation. If the case is really rather hopeless then that should be taken into account. In that, she is answering the question, why should the defendant be landed with the costs when there is little merit in the case? It’s a more practical approach. Also, it fits in with what the government has proposed to comply withAarhus.’

The judgment in the ‘Edwards’ case is likely to come before Christmas. The AG’s Opinion in ‘Commission vUK’ is likely to be delivered around March, with the full judgment following in the Autumn.

 

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About Author: Elizabeth Davidson

Elizabeth is a freelance writer and journalist, who specialises in law and justice.

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