75 - Fingleton - Landmark Chambers

Welcome back, Dear Reader, to the Aarhus Blog – the legal blog so popular that our regular readership has recently burst into the lofty heights of double digits. There are, quite literally, over 11 people interested in the Aarhus Convention. The internet is a remarkable community-building tool.

On today’s episode, we will be discussing the Fingleton Review of Nuclear Regulation, which has some… imaginative recommendations for Aarhus cost capping.

What is the Fingleton review? Well, it’s a report commissioned by government to examine, among other things, “the suitability of the existing regulatory framework” for nuclear regulation. It was led by John Fingleton CBE, a senior economist and civil servant whose main area of interest is competition and deregulation.

The review has implications not just for nuclear, but also all nationally significant infrastructure projects.

What does the review say? I may be simplifying things (as is my custom), but the essential premise of the Fingleton review is that that the number 1 reason we don’t have more nuclear energy in the UK is overregulation within the nuclear sector. That includes, for our purposes, excessive environmental and planning regulation, and also a regulatory system that allows legal challenge and over-broad grounds of challenge. Thus, the review has raised a number of eyebrows in the NGO sector by, for example, recommending that “The Government should… legislate to overturn the Finch judgment for low-carbon infrastructure.”

The Fingleton review was welcomed by, among others, the Policy Exchange think tank, which is something of an indicator of its contents. Also – perhaps surprisingly, given the devil is in the detail – the Prime Minister has committed to implementing all of the Fingleton review’s recommendations, in full, within 2 years (though I note, 2 years is quite a long time in politics).

It is therefore worth considering exactly what those recommendations are.

The Aarhus-specific recommendations begin at page 82 of the report.

At paragraph 344, it is correctly noted that there are difficulties in making comparisons between signatories to the Aarhus Convention. The basic point is, although Aarhus costs capping in the UK can appear generous compared with other countries, not all countries have an adverse costs regime like ours, and not all countries have a legal aid regime that is quite so limited.

However, following this very reasonable caveat, the review quickly goes on to give several comparative national examples that seem to make the case that our regime is too generous. These are referenced- but the references are to news reports, rather than any detailed comparative look at the example countries’ legal costs regime.

The review then concludes at para 350 that “We believe the levels [of Aarhus costs protection] are too low and incentivise claims which have no prospect of success and which delay development.”

The solution? Well, the review’s recommendations are at page 84. Here they are in full:

Following consultation with the Lord Chancellor, enact the following changes to the operation of the existing cost caps:

a) Where the court determines, in any part of the proceedings, that there has been a “misuse of judicial review”, there should be an automatic removal of the costs protection. This should be coupled with a requirement that the counsel and solicitors certify, as part of a claim, that the grounds have a more likely than not chance of success.

b) The cost cap is raised to take account of inflation since 2013 and linked to inflation going forward. Courts should, in addition, be issued guidance which encourages them to set higher caps, or maximally utilise their discretion, where there is a misuse of the process or where it is clear the intent is to delay development.

c) The cost cap be cascaded, being doubled for each stage of a challenge (e.g. from £10,000 at the first instance to £20,000 at the Court of Appeal).

d) Where crowd funding is utilised, the cap should be set at 70% of total funds raised (e.g. £70,000 if a campaigning group has raised £100,000 for a legal action). We consider that 70% represents a figure which balances access to justice, and the need for nuclear development without delay.

e) The costs cap for the decision-maker being challenged should always be set at a level which is at least 5 times the claimant’s cap in order to balance the relationship between a challenger and the decision-maker.

If necessary, prior to the enactment of the above, amend the Aarhus Convention under Article 14 of the Convention which endorse the principle of the measures above. If the principle of these measures is not endorsed, the UK should dispute any findings against it. Ongoing membership to the Convention is a matter for the UK Government.

The principle of a ‘single bite of the cherry’, and the above measures, should be extended beyond just NSIPs to nuclear site licensing and permitting decisions. If claimants lose on an issue relating to the DCO, they should not be able to re-run the same dispute at the site licensing or environmental permitting stages.”

Quite a lot to unpack here! (And I don’t think we have time to address all of it).

My favourite recommendation is that the government implement “a requirement that the counsel and solicitors certify, as part of a claim, that the grounds have a more likely than not chance of success.” It is unclear whether they want this to happen only after a determination that there has been a misuse of judicial review (if so-why?), or at the start of any challenge to a scheme, but either way it sounds like great fun:

- Firstly, I am sure most judges would be very interested in my views as to the merits of the cases I bring, and I can’t wait to explain to the court how likely I am to win (I tend to do this as a matter of course in any event, so I suspect this won’t make too much of a practical difference).

- There might be issues if my solicitors disagree with me as to merits, but I suppose we can always submit separate opinions to the court.

- Presumably, the review anticipates a right of response from the Defendant: so there will be a lot more work to be done, arguing about the exact prospects of a case, as opposed to, its actual merits.

- There might be a slight snag in implementing this recommendation in full: the longstanding common law principle of lawyer-client privilege, described by the House of Lords in R v Derby Magistrates' Court, ex parte B (1996) AC 487 as “a fundamental condition on which the administration of justice as a whole rests”. But that was way back in 1996, and many important events have happened since then (e.g. Brexit, the near-total hollowing out of the legal aid system, K-Pop Demon Hunters… the list goes on). So it’s quite possible that this description of the principle no longer applies.

Overall, it will be… interesting, to see where this one goes.

What else?

My actual favourite recommendation is that the “The costs cap for the decision-maker being challenged should always be set at a level which is at least 5 times the claimant’s cap in order to balance the relationship between a challenger and the decision-maker.” That is entirely because, for NGO clients subject to the £10k cost cap, that recommendation would mean that I get paid more than I do currently (£35k inclusive of VAT does not go that far when split between a big legal team- tiny violins welcome).

Next on the list…

Courts should, in addition, be issued guidance which encourages them to set higher caps, or maximally utilise their discretion, where there is a misuse of the process or where it is clear the intent is to delay development.

This is another fun recommendation. There aren’t many claimants challenging a development scheme who aren’t, at least to some extent, trying to stop that scheme from happening. So I think it will be higher caps all around, unless a claimant can argue that, actually, they support the scheme they are challenging, but e.g. they just enjoy going to court (though arguably that would be “a misuse of the process”- they have thought of everything!)

…and finally…

No real explanation as to how the “balance” has been struck here. In reality, after court fees, this will just mean the claimant’s team gets less if they lose, rather than the legal claim not going ahead. This recommendation will also lead to some fun satellite arguments about what is crowdfunding, how alternative sources of funding factor in, and the approach to be taken to multiple applications to vary the cap.

Overall, then I can see a lot more potential for interesting satellite litigation as a result of these recommendations, which is good work if you can get it – but it might not be entirely compatible with the swift resolution of legal challenges to large infrastructure projects.

Now, if I may strike an uncharacteristically sincere note, for just a moment:

Obviously we all want green, or green-ish, infrastructure to be in place as soon as possible. The transition away from fossil fuels is an urgent, and indeed existential, concern.

However, I think we also all want to live in a society where governments comply with the law, and can be taken to task when they don’t.

That inevitably means that there may be delays in delivering schemes while legitimate claims are brought to the courts (absent some kind of indemnity scheme, which is not a bad idea). There is already a robust process in place for weeding out bad claims. Claims are also reviewed regularly at various stages of the process. If a claim makes it, say, all the way to the Court of Appeal, it is quite hard to argue it was bad from the outset, unless the judges involved simply weren’t paying attention.

So, I do think it is problematic to seek to take away or restrict legal rights in order to speed up development, or rip up environmental regulations that become annoying because people expect them to be complied with.

Much better, I would say, to find creative solutions to problems within the existing regulatory framework, invest in better and more robust decision-making, and ensure swifter judicial processes.

Personal views only, if that wasn’t clear enough! And strong responses welcome on a future blog post…

That’s all for now folks! See you again soon- same time, same channel.

PS- for an excellent example of what happens when overregulation is deemed to be a bad thing, please watch this truly fantastic recent docudrama on water pollution. It focuses heavily on the sterling efforts of one of my client campaign groups in Oxfordshire- other clients were also involved as consultants.

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).

– Margherita Cornaglia – Margherita’s public law practice often involves acting in claims raising environmental and climate change related issues. For instance, she acted as junior counsel in the judicial review of the Government’s Third National Adaptation Programme (NAP3), pursued with an Aarhus costs cap, advancing novel arguments under Part 4 of the Climate Change Act. She also acted as junior counsel for community claimants in the Launders Lane litigation, challenging Havering Council’s refusal to designate Arnold’s Field as contaminated land; that claim likewise proceeded with Aarhus costs protection to secure effective participation and accountability. Beyond litigation, she has advised solicitors on the Government’s recent consultation concerning access to justice in relation to the Aarhus Convention, drawing on her broader practice representing NGOs and affected communities in environmental and climate cases.

– 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.

– Rebecca Sage – Rebecca is a junior tenant at Landmark Chambers with a growing practice in planning and environmental law. She is regularly instructed on matters engaging the Aarhus Convention, usually through the lens of judicial review. Rebecca has a developing interest in this complex and important area of the law and its implications for access to information, public participation in decision-making and access to justice.