Reforms put environment at risk

The Environmental Law Foundation (ELF), backed by senior counsel, says proposals to abolish the right to recover after-the-event premiums will price claimants out of civil justice and breach international law.

ELF, a leading environmental law charity, is urging peers currently debating the Legal Aid, Sentencing and Punishment of Offenders Bill to resist proposed changes to costs rules which would make taking action against environmental wrongs more costly than they are already—in direct breach of rules which require this to be “not prohibitively expensive” (as well as “fair, timely and equitable”).

Senior barristers Stephen Tromans QC, chairman of ELF, Stephen Hockman QC, a former chairman of the Bar, and junior counsel Gordon Wignall have prepared an opinion explaining how proposals to prevent claimants recovering insurance policy premiums to cover them against the costs of losing cases would be in breach of the government’s obligations under the UNECE Aarhus Convention.

Lord Thomas is promoting an amendment in the Lords to stop the changes.

Writing in NLJ, Stephen Hockman QC points out that Lord Justice Jackson recommended the rule that costs always follow the event be abolished. “This vital protection appears nowhere in [the Bill],” he says.

“It is said that it will be progressed by other means, but even then only in personal injury cases. This would leave claimants in most environmental cases exposed to the risk of significant adverse costs, as well as with no means to pay their own costs, with their right to access to justice correspondingly undermined.”

Tom Brenan, legal and policy officer at ELF, says: “ELF’s experience has consistently demonstrated that the fear of an adverse costs order is an insurmountable hurdle for many potential claimants in environmental cases.

“For example, of the enquiries we received over the previous two years concerning potential judicial review challenges with a positive opinion on the prospects of success, nearly 75% didn’t proceed primarily because of the costs risk.

The proposals in the Bill will raise the costs hurdle higher for communities seeking environmental justice.”