Lord Justice Jackson’s suggestion of a fixed-cost regime is an improvement on the government’s proposals, but falls short of providing ‘copper-bottomed’ compliance with the Aarhus Convention.

The convention requires that access to courts is ‘not prohibitively expensive’ in environmental cases. Jackson supports the proposed fixed cap of £5,000 on claimants’ costs. This is too high because it would deter claimants of ordinary means from pursuing environmental judicial review - £5,000 is roughly 10 weeks’ salary for the average working person.

Jackson also supports the government’s proposals for defendants to be allowed to apply to set aside the cap on the basis of publicly available information about the claimant’s means. This would prohibit many environmental charities (whose accounts are publicly available documents), or even homeowners of modest means, from bringing litigation. It would be simpler to exclude all for-profit companies from the cost protection regime. This would provide affordable access to justice in genuine public interest cases, while ensuring that cases brought to promote private interests are subject to normal costs rules.

We do need to fix costs to save the planet - but they need to be fixed at an affordable level.

James Thornton, chief executive officer, ClientEarth London E8