“Who will speak for the trees?” — MoJ “Costs Protection in Environmental Claims” consultation

“Who will speak for the trees?” — MoJ “Costs Protection in Environmental Claims” consultation

lone tree in mist

“The Lorax: Which way does a tree fall?

The Once-ler: Uh, down?

The Lorax: A tree falls the way it leans. Be careful which way you lean.”

The Ministry of Justice (MoJ) recently launched its consultation on reforms to the costs-capping rules in environmental challenges. In this post we consider the changes being put forward and what they may mean for the future of environmental litigation.

What prompted these reforms?

Three main factors appear to have sparked the touchpaper for this latest round of reforms.

  1. According to the consultation paper, there remains scope for greater clarity and certainty following both domestic and European judgments[1] that the pre-2013 environmental costs regime failed to satisfy the ‘not prohibitively expensive’ requirement of the Public Participation Directive or the Aarhus Convention.
  1. There have been continued Government efforts to tackle the ‘growth in unmeritorious judicial review’, most recently in funding.
  1. The headlines of the delayed implementation of several major infrastructure projects arising from legal challenges with HS2, London Garden Bridge, and Hinkley Point C nuclear power station to name but a few.

What is being proposed?

The proposals fall into four main areas:

  • the scope of the regime in terms of the types of cases that are eligible for costs protection and whether the regime should be extended to apply to certain reviews under statute;
  • the types of claimant eligible for costs protection;
  • the levels of costs protection available and whether they should remain fixed or should be variable; and
  • the factors which courts consider when deciding whether cross-undertakings in damages for interim injunctions are required in cases which fall

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