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CJEU leans towards objective interpretation of "not prohibitively expensive" environmental proceedings

National courts must be sure that any legal costs to be paid by a member of the public who has lost an environmental challenge against a public body are not "objectively unreasonable", the Court of Justice of the European Union (CJEU)  has ruled.

In its judgment, the CJEU said that courts could consider the financial resources of the individual member of the public when deciding whether or not legal action was "prohibitively expensive". However, due to the "public interest in the protection of the environment", that person's financial situation could not be the only consideration.

"The national court called upon to give a ruling on costs must satisfy itself that [requirements under the Aarhus Convention have] been complied with, taking into account both the interest of the person wishing to defend his rights and the public interest in the protection of the environment," the judgment said.

"That assessment cannot, therefore, be carried out solely on the basis of the financial situation of the person concerned but must also be based on an objective analysis of the amount of the costs, particularly since ... members of the public and associations are naturally required to play an active role in defending the environment. To that extent, the cost of proceedings must not appear, in certain cases, to be objectively unreasonable," it said.

Courts could also take into account factors such as the individual's chance of success, the importance of what was at stake, how complex the relevant law was and whether or not the claim was "frivolous" when making an order as to costs, the CJEU said. However, the fact that a member of the public had "not been deterred, in practice, from asserting his claim" was irrelevant, it said.

The CJEU was responding to a referral made by the Supreme Court of the UK in May 2011 (29-page / 167KB PDF) in respect of a challenge to  development at a cement works in Rugby. It related to judicial review proceedings originally brought in the name of David Edwards and subsequently taken forward by Lilian Pallikaropoulos.

The Supreme Court had asked the CJEU to rule on how far the circumstances of an individual applicant should be taken into account when deciding whether it was prohibitively expensive for that person to challenge a public body in an environmental case.

The EU is a signatory to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (25-page / 50KB PDF). It provides that public bodies must ensure that members of the public have access to a procedure to challenge decisions relating to the environment to the extent permitted by national law. Amongst other things, the Aarhus Convention specifies that this procedure should not be "prohibitively expensive".

Environmental law expert Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com, said that the CJEU's ruling had helped to clarify whether national courts should adopt an objective or subjective approach when ruling on costs. However, it had not indicated how much "weight" should be given to the different considerations.

"The CJEU was clear that you could not have a rigid rule based on an objective assessment pinned to the average applicant as this would not be appropriate on every occasion," he said. "Instead a more flexible approach is required, which can take account of the claimant's particular circumstances. The Court was clear that whether or not the claimant has been deterred is not relevant. Furthermore, that the same approach should be adopted irrespective of the stage of the legal process."

 "I do not think we have seen the end of the confusion surrounding the Aarhus Convention. The restrictions being imposed in relation to legal aid and the ongoing debate around the level of cost caps are unlikely to be resolved in the near future. The Government's stated intention to further restrict the time limits for judicial review applications are also at odds with Aarhus," he said.

The time limit for applying for judicial review could be cut from three months to six weeks to limit the number of "weak or frivolous claims", as proposed by the Ministry of Justice in a consultation document last year. Other changes outlined in the document include limiting the number of repeated applications that can be made and an increase to the fees payable when bringing a judicial review application.

The Government announced last year that it would introduce Protective Cost Orders (PCOs) for environmental judicial review claims. The new regime allows courts to grant a PCO before deciding whether to proceed with a challenge from the public to a Government project on environmental grounds, providing that the claim falls clearly within the scope of the Aarhus Convention. Costs will be capped at £5,000 for individuals and £10,000 for organisations, with the public body's liability for the applicant's costs capped at £35,000.

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