Cost Protection for Litigants (Environmental Judicial Review Cases)

Wednesday 19th October 2011 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I am publishing the consultation paper “Cost Protection for Litigants in Environmental Judicial Review Cases” on 19 October 2011.

This is a formal consultation exercise undertaken by the Ministry of Justice to seek views on the Government’s proposals to codify the current case law on protective costs orders (PCOs) in relation to judicial review claims which fall under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Aarhus Convention”), including those covered by the Public Participation Directive (Directive 2003/35/EC) (the “PPD”). PCOs are orders developed by the courts which are designed to set a predetermined limit on a claimant’s exposure to a defendant’s costs.

The courts currently retain discretion on both the question of whether a PCO should be granted and the level at which it should be set. The Government have accepted for some time that it would be in the interests of applicants in environmental judicial review cases to provide greater clarity about the level of costs through a codification of the rules on PCOs which sets out the circumstances in which a PCO will be granted and the level at which it will be made.

The proposals in this consultation are designed to establish the basic principles for rules setting out the nature and content of a PCO in a “standard case” and how far, and in what circumstances, it will be possible to depart from the “standard case”.

To keep the overall level of costs down it is also proposed that where a cap on the claimants’ exposure is granted there should also be a linked cap on the liability of the defendant for the claimants’ costs (known as a “cross-cap”).

Copies of the consultation paper are available online, at: www.justice.gov.uk.

The consultation period will be from 19 October 2011 until 18 January 2012 and I will make a further statement regarding the response shortly after the consultation period ends.