Stephen Tromans QC, together with Stephen Hockman QC of 6 Pump Court and Gordon Wignall of No. 5 Chambers, instructed jointly by Hugh James and Richard Buxton solicitors, have produced a joint Opinion on the impact of the Aarhus Convention on costs and funding rules in environmental cases. The Opinion makes the following important points:
The Opinion was referred to by Lord Thomas of Gresford and others in the House of Lords Committee Debate on the LASPO Bill on 1st February 2012, in proposing amendments to deal specifically with the issue of environmental judicial review and private nuisance. He pointed out, correctly, that private nuisance has enjoyed a real renaissance in recent years, as the last resort for local residents where the regulator is unable or unwilling to take effective action. His amendments sought to introduce QUOCS for environmental claims, using the Aarhus definition of such claims. The Government opposed the amendments, according to the Minister of State, Lord McNally, on the basis that it was not clear why for environmental claims there should be “a departure from the general principle that in civil proceedings, matters relating to costs are regulated in detail by rules of court” (Col. 1582). The Government is not persuaded that the case for extending QUOCs beyond personal injury claims has yet been made. The Government apparently still see PCOs as the answer. Following a sometimes heated debate, the amendment was withdrawn.
The difficulty, as the Opinion makes clear, is that PCOs are not the legally compliant answer even in judicial review cases. And as Lord Thomas explained, the proposed approach in the Bill will tip the scales of justice markedly against claimants. It may also be noted that Lord Justice Jackson has himself responded to the consultation on costs protection for litigants in environmental cases. He reiterates the view that PCOs are not a satisfactory answer and that QUOCS is the preferred solution. However, in the absence of Government support at this stage for that course, he has suggested a fixed costs regime be developed, which he says would represent “copper-bottomed compliance with Aarhus”. Effectively this would mean that a claimant (unless they choose to opt out of the fixed costs regime or the defendant makes a successful application for it to be disapplied) would have their costs exposure limited to £5,000 and their costs recovery limited to £30,000. The problem with that course however is that, as the Opinion points out, the claimant’s costs in many environmental cases will exceed £30,000 and as a result there will not be equality of arms against a corporate defendant.