Summer sees rapid developments in relation to costs in environmental cases

On 29 July 2010 the Court of Appeal gave its decision in the case of R(Garner) v Elmbridge BD [2010] EWCA Civ 1006. The transcript of a judgment has just become available. The decision marks a radical departure from the “Corner House” rules governing protective costs orders in cases where Article 10a of the EIA Directive is in play, and will make it very significantly easier to obtain PCOs in such cases. In particular, the court accepted that the costs of a two day judicial review were likely to be “prohibitively expensive” and that detailed evidence of means of the individual claimant concerned might not be necessary. Richard Drabble QCappeared for Mr Garner; David Smith prepared the large part of the pleadings and skeleton argument.

In late August the Aarhus Compliance Committee issued its draft findings in respect of the Port of Tyne communication in which ClientEarth and others were the communicants. The Committee concluded that the UK had not adequately ensured compliance with the requirement that access to environmental justice was not prohibitively expensive. See further http://www.unece.org/env/pp/compliance/C2008-33/DRF/C33DraftFindings.pdf.

Also in August the Lord Justice Sullivan's Working Group on Access to Environmental Justice produced an update report which concluded that there is an urgent need for the Civil Procedure Rules to be amended in relation to costs in environmental cases and proposes a wording that we believe would bring the UK into compliance with the Aarhus Convention and EU law.

Today the High Court gave judgment in R (Coedbach Action Team Ltd) v Secretary of State for Energy and Climate change and Helius Energy Plc in which the implactions of Garner were considered and a PCO refused.  James Maurici appeared for the Secretary of State for Energy and Climate Change. John Litton QC appeared for Helius Energy Plc.

Chambers is intending to run a breakfast briefing on all these developments. Please contact tsprules@landmarkchambers.co.uk for further information.