Public and private law in climate litigation

This blog was written by Margherita Cornaglia and Eleanor Bennett

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The recently published Oxford Handbook of Climate Change and Private Law examines the interaction between climate change and private law, considering topics including tort, contract, corporate law and climate litigation. One of the Handbook’s authors queries why adaptation cases such as the challenge to the legality of the third National Adaptation programme (“NAP3”) were brought in public law, rather than private law, despite their suitability for tort action.

We think there are three reasons why claimants continue to favour public law challenges. 

1. Adverse costs

Claimants wishing to bring private law environmental claims do not have access to the Aarhus cost-capping regime under Part 46 of the Civil Procedure Rules. Without stepping on the toes of the Aarhus blog, in short, a claimant may not be ordered to pay costs exceeding £10,000 (£5000 if the Claimant is an individual) in an Aarhus Convention claim. “Aarhus Convention claim” is defined in CPR 46.24(2)(a) and is limited to public law claims challenging the legality of a decision, act, or omission of a body exercising public functions. The lack of equivalent protection in private law claims can make the cost of pursuing these prohibitively expensive, particularly for impecunious claimants and environmental NGOs.

2. Positive precedent

The success of previous net zero challenges relying on statutory obligations provides (to some extent) positive precedent which could inform a legal challenge to the Government’s alleged insufficient action on adaptation.

Under Part 4 of the Climate Change Act 2008, the Secretary of State is subject to statutory obligations concerning the impact of and adaptation to climate change. As noted by Lord Sales, “this statutory framework has provided fertile ground for public law climate change challenges, with many claimants seeking, with some success, to compel the government to strengthen measures reducing emissions”.

We can see the influence of such positive precedents in cases such as the NAP3 challenge, which builds on concepts such as risk to delivery, which were developed in challenges under Part 1 of the 2008 Act.

3. Public interest

Public law remains, arguably, better suited for public interest claims. Climate change is often seen and accepted by the Courts as an issue affecting society as a whole. For example, the European Court of Human Rights recognised in Verein Klimaseniorinnen Schweiz v Switzerland the “particular relevance of collective action in the context of climate change, the consequences of which are not specifically limited to certain individuals” (§622).

This approach to standing allows NGOs to act as a claimant, representative of wider community interests. For example, Friends of the Earth is a claimant in the NAP3 challenge, instead of a mere background supporter of the individual claimants, in light of its ability to reflect and represent the wider public, and particularly vulnerable communities who are disproportionately affected by climate change.

Having set out the reasons why public law is often preferred by claimants, we conclude by noting that private law does have a role to play in climate litigation. In particular, we would not be surprised if strategic claimants sought to rely on public nuisance in future climate disputes. In essence, a public nuisance is an unlawful act or omission that endangers the life, safety, health, property, or comfort of the public. It therefore straddles the public and private law spheres and may be a particularly apt avenue for climate litigants. Similarly, a public nuisance claim may lend itself well to arguments on costs capping akin to those advanced in Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012 and related case law. While we have not yet seen such a claim in the UK, it is for these reasons that we think we may see one soon.

This blog post draws on content from Margherita’s talk at the launch of the Oxford Handbook of Climate Change and Private Law launch.