The first steps have been taken to ensuring that environmental justice is not impeded by the rules of legal costs, writes Pamela Castle OBE

The Court of Appeal judgment in R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 earlier this year would appear to augur well for claimants in public law cases, including those bringing cases on environmental issues. It has set down guidelines for the protective costs order (PCO), which insulates the less well-off claimant, either wholly or in part, from the liability of having to pay the defendant's costs should the case be unsuccessful.


There was also a strong steer from the court that the PCO should be formalised by the civil procedure committee and the senior costs judge. It can be made at any stage of the proceedings and on terms determined by the court, provided that:


  • The case is of general public importance;


  • The 'public interest' is such that the issues raised by the case need to be resolved;


  • The claimant has no 'private interest' in the outcome;


  • The financial resources of both the claimant and the defendant make it fair and just for the PCO to be made; and


  • There is little likelihood of the claimant continuing with the case if the PCO is not made.



    • Furthermore, if those acting for the claimant are doing so pro bono, there is even more likelihood of the PCO being granted. This is particularly encouraging for the Environmental Law Foundation (ELF), which gives free advice to individuals and communities on environmental matters. In our experience the adverse rules on costs are a highly significant deterrent to would-be claimants seeking redress at law.


    The granting of a PCO will depend on there being both 'public interest' with no 'private interest'. With regard to the former, records at ELF show that one environmental problem affects, on average, about 1,000 individuals, ranging from specific environmental issues such as the protection of national heritage sites, noise pollution or water pollution, to legal issues such as a lack of clarity in the law or on procedural matters. There is little doubt that, for the most part, environmental cases would fulfil the 'public interest' criterion.


    The requirement that there also be no 'private interest' could be more difficult. To date, most of our cases are brought by individuals who have a private interest in the case, notwithstanding that there is also an additional public interest. At face value, it would seem that this private interest requirement could preclude them from qualifying for a PCO. It would seem that the PCO would be reserved for non-governmental organisations and public interest groups.


    There is a further problem for the claimant of limited means - there is a liability attached to the costs incurred in making an application for a PCO. If the application is refused, there is the possibility of having to pay up to £2,000 of the defendant's costs. Furthermore, if the refused applicant appeals, and fails, liability for the other side's costs could be up to £5,000.


    Last year, the decision of the Court of Appeal in environmental case R (on the application of Burkett) v LB Hammersmith and Fulham [2004] EWCA Civ 1342 highlighted the unsatisfactory situation on costs and drew attention to the provisions of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention), now ratified by the UK. The convention requires that there be 'fair, equitable, timely and not prohibitively expensive' procedures in place for members of the public to challenge public authorities' contravention of environmental laws.


    We now wait to see whether the Corner House judgment, together with the provisions of the Aarhus Convention, result in more claimants seeking access to environmental justice.


    Pamela Castle OBE is the chairwoman of the Environmental Law Foundation