On 28 August the Ministry of Justice published “Cost Protection for Litigants in Environmental Judicial Review Claims Outline proposals for a cost capping scheme for cases which fall within the Aarhus Convention: Response to Consultation CP(R) 16/11”. This was the post-consultation report for the consultation paper, Cost Protection for Litigants in Environmental Judicial Review Claims published on 19 October 2011.
For both documents, see https://consult.justice.gov.uk/digital-communications/cost_protection_litigants
The proposals which have altered from those in the Consultation Paper are:
- A fixed recoverable costs regime will apply in all cases where the claimant states in the claim form that the case is an Aarhus case and the reasons why this is so, subject only to the court determining that the case is in fact not an Aarhus case at all. It will not be dependent on permission having been granted.
- The recoverable costs will be fixed as follows: the liability of the claimant to pay costs of the defendant will be capped at £5,000 if the claimant is an individual and at £10,000 where the claimant is an organisation; and the liability of the defendant to pay the costs of the claimant will be capped at £35,000.
- The fixed recoverable costs for both the claimant and defendant cannot be challenged, but the fixed costs regime will not apply if the claim is not within the scope of the Convention.
- The rule proposed by Lord Justice Jackson for appeals for cases that have been heard under a fixed costs regime will also apply for appeals in cases brought under the Aarhus costs regime.
It is said that the “Government will put proposals based on the above principles to the Civil Procedure Rule Committee for consideration at the earliest opportunity with the intention that, if possible, the rules should be included in the body of rule amendments planned for making in December 2012”.