Killian Garvey, planning & environmental law barrister at Kings Chambers, discusses with Lawyer Monthly the recent High Court ruling to re-impose fixed costs for disputes in planning and environmental cases.
You will likely have the seen the headlines which accompanied the decision taken by the High Court in September to re-instate fixed costs for disputes in planning environmental cases – overturning rules introduce by the Ministry of Justice in February.
To understand the full implications of the ruling, it is important to first understand the background against which the decision is set. From there, we can understand the likely impact of the ruling, and what it will means for disputes in planning and environmental cases going forward.
The background
Going back to 1st April 2013, we can see that the Civil Procedure Rules were amended to include new rules for claims that fell within the Aarhus Convention.
This applied to any claim for judicial review that, in simple terms, engaged environmental matters. The definition of environmental matters within this context was intended to be broad and comprehensive.
Moreover, it provided a strong incentive against challenging whether the matter is environmental. If such a challenge was unsuccessful, the defendant would be ordered to pay indemnity costs for having raised the matter (per CPR 45.44).
Where the matter was a judicial review that engaged environmental issues, CPR 45.41 provided the claimant with the mechanism to secure a protective costs order. This meant that, even if the claimant lost their claim, they only need to pay £5,000 in costs to the other side, or £10,000 where the claimant was an organisation.
In Venn,[1] it was held that these provisions could be read across to statutory challenges to an Inspector’s decision.[2] However, they did not apply as a matter of course. The Claimant would need to demonstrate that they required the protective costs order in light of their financial resources.
These provisions in the CPR had, therefore, acted as a mechanism whereby claimants can pursue judicial reviews, whilst significantly limiting their costs exposure.
However, on 28 February 2017, at the behest of the Ministry of Justice, the CPR was amended to soften these provisions through CPR 52.19A.
The changes meant that the Court had the power to vary the costs cap of £5k or £10k, to a much higher figure depending on the claimant’s personal resources and or access to funds (including from supporters).
Accordingly, the previously fixed costs cap became a flexible figure, which could be varied on each occasion.
The challenge
A number of charitable groups invested in environmental decisions (eg. the Royal Society for the Protection of Birds) pursued a judicial challenge of these provisions in R. (RSPB and others) v Secretary of State for Justice [2017] EWHC 2309 (Admin). They contended that the rules were in breach of the Aarhus Convention.
The challenge was pursued on three grounds, namely:
- That the provisions meant the costs of litigation were no longer ‘reasonably predictable’, which would dissuade parties from pursuing challenges and compromise access to justice
- That it was improper that parties had to disclose their financial resources in a public forum
- That the costs involved in bringing the claim had to be relevant to the assessment of whether the costs would be prohibitively expensive.
Dove J found that the amendments to the CPR were not unlawful, however, he provided clarity on their application.
As regards ground 1, Dove J held that where a protective costs order is to be challenged, it should be done in the acknowledgment of service. The level of costs should be determined at the outset of the claim, so that the claimant can know early in the process their potential costs exposure.
As regards ground 2, the Court found that where the claimant’s financial resources were to be considered, the hearings should be in private with such information being kept confidential.
This was to avoid ‘the chilling effect, which the prospect of the public disclosure of the financial information of the claimant and/or his or her financial supporters’ could have.
As regards ground 3, the Court found that the Claimant’s own costs were relevant to assessing whether the costs were prohibitively expensive.
Following the ruling the law firm acting on behalf of the charitable groups claimed they had won ‘major concessions’ from the Government which ‘make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.’
In particular, as result of Dove J’s judgment, the costs cap must be set at the permission stage of the proceedings; whereas previously it was understood that at any stage of the proceedings the Court could vary the costs cap.
Similarly, the Secretary of State for Justice has equally claimed success, on the basis that the amendments to the CPR have been upheld in substance, albeit their application might have changed.
For practical purposes, the judgment confirms that the previously fixed costs cap can now be varied in judicial review claims. However, only time will tell as to whether the Courts will typically be open to varying the costs cap in any appreciable manner.
Moreover, in light of the need for hearings in private, it might be the case that the costs associated with arguing this point outweigh the savings made in varying the costs cap in any event.
At this stage there is potential for the High Court ruling to play out in a number of ways. Planning and environmental lawyers will watch with interest to see whether the amendments to the CPR have much difference in practice.
[1] Venn v SSCLG [2013] EWHC 3546 (Admin)
[2] Pursuant to s.288 of the Town and Country Planning Act 1990
