Further amendments to the Aarhus costs rules in…

On Wednesday 28 February there was laid before Parliament the Civil Procedure (Amendment) Rules 2018.

This makes further amendments to the Aarhus costs rules in the CPR following on from the judgment of Dove J. in R (Royal Society for the Protection of Birds) v Secretary of State for Justice [2017] EWHC 2309 (Admin); [2017] 5 Costs L.O. 691.

The changes relate to:

1. The definition of what should be included in the schedule of the claimant’s financial resources; and

2. The procedure for seeking to vary the costs cap.

Rule 3 provides that:

1. A schedule of the claimant’s financial resources, which is verified by a statement of truth must provide details of -

(i) the claimant’s significant assets, liabilities, income and expenditure; and

(ii) in relation to any financial support which any person has provided or is likely to provide to the claimant, the aggregate amount which has been provided and which is likely to be provided.

2. It also provides that where a cap is sought to be varied:

a. by a claimant it must “be made in the claim form and provide the claimant’s reasons why, if the variation were not made, the costs of the proceedings would be prohibitively expensive for the claimant”

b. by a defendant it must “be made in the acknowledgment of service and provide the defendant’s reasons why, if the variation were made, the costs of the proceedings would not be prohibitively expensive for the claimant” and it must “be determined by the court at the earliest opportunity”.

3. It is also provided that “[a]n application to vary may be made at a later stage if there has been a significant change in circumstances (including evidence that the schedule of the claimant’s financial resources contained false or misleading information) which means that the proceedings would now— (a) be prohibitively expensive for the claimant if the variation were not made; or (b) not be prohibitively expensive for the claimant if the variation were made”. Where such an application is made:

a. by the claimant it must “be accompanied by a revised schedule of the claimant’s financial resources or confirmation that the claimant’s financial resources have not changed” and “provide reasons why the proceedings would now be prohibitively expensive for the claimant if the variation were not made”

b. by the defendant it must “provide reasons why the proceedings would now not be prohibitively expensive for the claimant if the variation were made.”

In the RSPB case:

Andrew Parkinson appeared for the claimants led by David Wolfe QC.

James Maurici QC appeared for the Secretary of State (Charles Banner and Jacqueline Lean have previously acted for the Secretary of State in relation to these proceedings but were unavailable for the hearing).