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Welcome back, dear reader, to the Aarhus blog- the blog so topical, you can now buy it in the form of a soothing gel.
And what better balm for worried environmental lawyers than the exciting post-Halloween news that, for now, the Aarhus Convention is very much alive (alive!).
Reports to the contrary from entirely unreliable clickbait blogs across the internet must accordingly be disregarded.
On 20 October 2025, DEFRA Minister Mary Creagh confirmed in response to a Parliamentary Question that:
The United Kingdom Government is committed to the effective implementation of its international obligations and has no plans to withdraw from the Aarhus Convention.
Reassuring, for those of us who very much depend on clients being able to afford legal proceedings!
However, leaving the Convention is one thing- pushing its boundaries is quite another, and the government has not yet ruled this out.
In other related Aarhus news (oh how they laughed, when they said we would never get enough regular content for a blog dedicated solely to the Aarhus Convention): that perennial topic, Aarhus costs protection has been back in court again.
And it’s a fun one.
Let’s start at the end first- the losing party was Natural England, who unsuccessfully applied to increase the cost cap of the Badger Trust and Wild Justice. Here are some extracts from their remarkable public explanation for what happened:
“Firstly, the judicial review system to challenge decisions made by public bodies is crucial in a democratic society. Secondly, Natural England values the principles of the Aarhus Convention and the system it provides to enable anyone to seek environmental justice…
We have never looked to use the procedure in the Civil Procedure Rules to increase a costs cap before and we might never make this sort of application again. We respect the judgment of the court that the standard cap should remain in place for this claim and given the limited caselaw around this, we welcome the clarity that the court has brought.”
Record scratch. Freeze frame. You might be wondering how I, Natural England, the government’s national adviser on the natural environment, found myself in this situation, having to clarify to the world that I do in fact value environmental justice. It all began with some badgers…
The case involved a challenge to a decision to issue or renew some badger cull licences authorising farmers to kill badgers in 2024. My stellar chambers colleague Barney McCay appeared for the claimants, led by David Wolfe KC.
As part of those wider proceedings, one of the Defendants, Natural England, applied to increase the claimants’ costs caps from the usual £10,000.
It didn’t work out well. Fordham J’s judgment is now available here, and merits a careful read. It provides some very useful pointers and is really quite scathing at times. Here are some choice gobbets:
“The Court is, at least, entitled to regard [the default cost caps] as “normal” and “general” [26].
“a clear demonstration would be needed for a variation” [26]
“A variation decision does not start with a clean-sheet, as if the [default] Caps did not exist or their levels were unknown” [26]
“Mr Luckhurst told me it was not Natural England’s intention to “stifle” this claim. He reserved his position on whether a duty of candour applies to the reasons for pursuing a variation [(!)]. I do not need to address that point for the purposes of my decision” [49]
“What is at stake is important for these two NGOs. It is also of real importance for the environment. It is an environmental protection case. I do not see this as a case with “limited practical significance for the protection of the environment” (cf. Edwards SC at §36). It is about Natural England’s decision-making approach. It involves a backward looking legal audit. There is a bigger picture. Indeed, the very fact of that legal audit promotes a public interest, in an environmental protection context. These legal audits are important “for the environment” (CPR 46.27(3)(b)(iv)). This one is. If Natural England went wrong in public law terms in this case, it matters “for the environment”. It could certainly make a difference – whether direct and obvious or whether indirect and more subtle – looking forward.” [52]
“The situation of Natural England as defendant is that it is a public authority acting as an environmental regulator. It has public interest aims and objectives. It operates with public money. Like Badger Trust and a reserves policy, there are stewardship responsibilities to which Mr Luckhurst is right to point. All of this will very often be the case in access to environmental justice judicial review cases. Natural England has won cases in the past and may win this one. Its legal costs are real, and will involve a deficit even if it succeeds. Sometimes public authorities have to accept the practical implications of legal audits and irrecoverable costs. It is always thus with legal aid, for reasons themselves the product of arrangements which address access to justice and the public interest. Natural England has an annual budget of £350m and a legal budget of £2.32m per year.” [54]
“…even assuming that this supports Natural England as to real-world affordability under Limb (a) (CPR 46.27(3)(a) and (4)), it does not go further and indicate objective reasonableness. All of the arrangements put in place were eminently reasonable: enlisting an expert team of specialist lawyers, including a KC and a junior and specialist solicitors, to maximise the chances of succeeding; trying to avoid unnecessary satellite hearings, including as to permission and costs caps; lawyers acting at discounted rates; a balanced and sensibly pitched crowdfunding exercise. I see nothing to criticise; and indeed nothing which a Court can appropriately be asked to criticise.” [55]
“It is in the interests of access to environmental justice, with its public interest imperative, that NGOs like Wild Justice and Badger Trust should retain the viability to be “repeat players”. Objective reasonableness does not mean room for one, or even two, more cases. Proper access to environmental justice for a responsible NGO cannot mean a system of limited “credits”, after which the NGO is bust or effectively excluded, with the environment unprotected until someone has the energy to start up a new NGO with a new set of “credits”. Space to be a repeat player does not mean litigating everything with no ceiling and no filter. Robust application of arguability and discretionary bars are designed as a filter. Two of the statutory relevancies are concerned with viability: reasonable prospect of success; and non-frivolous claims (CPR 46.27(3)(b)(ii) and (vi)). Objective reasonableness must mean Wild Justice and Badger Trust litigating this viable claim without the shadow that the next judicial review claim or claims is out of reach.” [56]
“Finally, the signals which the law gives in environmental judicial review cases matter. Especially when the rationale of environmental costs caps is to avoid inappropriate deterrence or chilling effects. All of which is because something bigger than all of us is at stake: the environment which we share with each other, and with others, and for which we are responsible.” [57]
“I think Natural England’s focus was too much on suggested real-world affordability (Limb (a)), and not enough on the freestanding concept of objective unreasonableness, viewed against the mandatory relevancies and in the context of the overarching purpose of facilitating access to environmental justice with its public interest imperative, and all in the context of a viable and undiluted environmental protection judicial review claim.” [59]
“I add this. Natural England has subjected the Claimants’ accounts and reserves policies, arrangements for legal teams, and arrangements for fundraising to close scrutiny. There were invitations to look at the financial information in a particular way, including some inferences. A considerable portion of a 3-hour hearing of the costs cap arguments – preceded by written submissions and pre-reading – were devoted to this exercise.
I can see how the mechanism of the Rule 27 Variation allows for that exercise to be invited. And I understand the approach that was taken. But I should be transparent. I was left feeling that it would not be a good thing for access to environmental justice if this sort of exercise were to become an established feature; still less a new norm. The court room during this hearing would, I think, have been a chilling place for responsible environmental NGOs, contemplating viable environmental protection judicial review claims. As I see it, the whole point of Rule 26 Caps is to have a degree of appropriate prospective reassurance. The idea of spiralling costs from satellite litigation, introducing uncertainty and costs risk, for the purpose of this kind of exercise, could clearly stand as a practical disincentive. And it could be hard for responsible lawyers to offer environmental NGO clients real, practical comfort. And so, all in all, I was left feeling that it was particularly appropriate that the Court should respond as robustly, straightforwardly and clearly as it legitimately could. I have tried to do that. It is not a coincidence.” [60]-[61]
A lot of quotes- but a lot of content! What a judgment.
Speaking only for myself, and having seen an increasing tendency on the part of public bodies to make such applications, I think it is welcome.
Finally- spare a thought for the poor legal adviser who first suggested applying to vary the caps in this case. This very public decision has now undoubtedly made such applications a more difficult and risky endeavour for all public bodies.
Until next time, readers!
This blog post was written by Alex Shattock.
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Authors of the Aarhus blogs
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; ACCC/C/2014/100 and 101; ACCC/C/2017/150. He is currently acting on the Free Trade Agreement Communication ACCC/C/2022/194. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.
– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.
– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).
– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.
