Green groups have been unable to challenge instances of pollution in court because of prohibitive costs
Legal costs review may not help environmental cases
18th January, 2010
Major judicial report may not help NGOs and individuals challenge environmental damage in courts without facing prohibitive financial risk
The cost of bringing cases against environmentally-damaging decisions in the UK will not be resolved by last week's major review of civil litigation costs, say environmental lawyers.
Lord Justice Jackson's report recommended that claimants in civil cases should not normally be at risk of having to pay the other side's costs.
However, lawyers from ClientEarth say the recommendation, even if accepted by the Government, may not benefit those bringing environmental cases, particularly NGOs.
'Going in blind'
Anyone bringing a case and losing will be means-tested for their ability to pay and then charged 'reasonable costs', which for organisations like WWF, with big budgets, could be huge. The report does not define how much 'reasonable' could stretch too.
Sandy Luk, senior lawyer at ClientEarth said the report was 'primarily aimed at cases such as personal injury or clinical negligence claims...but in relation to environmental cases brought in the public interest, such a rule would not change the current problems which keep potential claimants from taking action.'
ClientEarth also say the recommendations do not indicate whether the claimant would be aware of their liability for costs beforehand. NGOs and individuals were often deterred from challenging environmental bad practice because of being forced to 'go into cases blind'.
'If the Government adopts these proposals, the looming costs shadow on public spirited individuals and environmental organisations would persist,' said Sandy Luk.
Despite the concerns, Friends of the Earth (FOE) said it was 'optimistic that [the recommendations] could turn into something good'.
'At the moment access is prohibitively expensive. There is no guarantee that they will remove the barrier but, properly implemented, there is a real possibility that it could,' said FOE head of legal Phil Michaels.
Michaels said the success of Lord Justice Jackson's proposed changes would depend upon two key points: the extent of the costs for which a claimant might be liable, and the level of certainty a client has about those costs.
Lord Justice Jackson's report is now being considered by the Ministry of Justice, headed up by Jack Straw.
The UK is also facing two other challenges to its prohibitive cost regime.
The European Commission and the United Nations are both currently considering separate legal action against the UK on the basis that legal action is presenting a significant obstacle to access to justice.
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