The issue of legal costs and fairness in judicial reviews of controversial, large-scale energy and infrastructure investments can be vexed – as demonstrated by the recent Aberdeen by-pass case.
The Compliance Committee of the Aarhus Convention found that the UK has not taken sufficient action to comply with the requirement that access to justice must not be prohibitively expensive despite the introduction in all UK jurisdictions of new rules of court limiting the amount litigants would be liable for in certain environmental cases.
The Aarhus Convention recognises that it is essential that individuals and NGOs are able to take legal action to protect the environment and that it must not be ‘prohibitively expensive’ to do so.
Consequently, the Convention’s new ruling requires all members – including Scotland/ UK to “further review its system for allocating costs in all court procedures subject to article 9, and undertake practical and legislative measures to ensure that the allocation of costs in all such cases is fair and equitable and not prohibitively expensive”.
Meanwhile, the cost of taking a judicial review in Scotland remains extremely expensive, despite the introduction of new rules limiting the amount litigants would be liable for should they lose in certain cases taken under the Convention. Under the current regime an individual going to court in the public interest to protect the environment could be liable for more than £35,000.
Frances McCartney, a Scottish solicitor who attended the UNECE conference, said: “It is welcome that this decision against the UK has been upheld as it is clear that access to justice in environmental cases is severely hindered by the issue of excessive costs.
“Several of my clients have been unable to access justice on issues affecting their home and immediate environment. “However, it is important to note that the decision does not fully reflect the key problem areas specific to Scotland, such as the particular difficulties in obtaining legal aid in environmental cases. The Government must reform not only legal aid, but also look again at liability for expenses and court fees.”
The Scottish rules of court on Protective Expense Orders came into force in March 2013, and enable certain groups to apply for an order to have their liability for the other sides’ costs capped. The rules are limited to cases falling under the Public Participation Directive (PPD) and do not apply to all environmental cases.
Further, the rules apply only to individuals and NGOs promoting environmental protection and specifically preclude ‘persons who are acting as a representative of an unincorporated body or in a special capacity such as trustee’.
Mary Church, Friends of the Earth Scotland head of campaigns, commented: “It is essential that the public and NGOs are properly engaged in decision making that impacts on our environment as a counterbalance to short-termism and big business interests.
“The Aarhus Convention requires that parties put fair, accessible and affordable regimes in place to enable individuals and NGOs to defend the environment in court. We urge the Scottish Government to undertake a comprehensive review of its obligations under the Aarhus Convention, and bring our legal regime into the 21st century at last.”