AC-2024-LON-002644 - [2025] EWHC 2761 (Admin)

The Claimants are associations who are playing an active role in defending the environment. They are non-governmental organisations who are defending the environment before a court. The Aarhus Convention of 25 June 1998 imposes international law obligations relating to access to environmental justice (Article 9). Access to justice includes holding national public authorities accountable to standards of national law which relate to the environment (Article 9(3)). That includes the legal audit of judicial review in an environmental protection case. A golden rule is that access to justice procedures must not be “prohibitively expensive” (Article 9(4)).

When it comes to costs in judicial review, there is a recognised reconciliation of public interests, both the public interest as to avoiding deterring claims on the one hand, and the public interest as to exposing the resources of public authorities on the other: see Responsible Development for Abaco Ltd v Christie [2023] UKPC 2 [2023] 4 WLR 47 at §75. One possibility which is familiar in environmental cases is that the judicial review Court may decide it is appropriate to make no order for costs even if a claim has failed: R (Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWCA Civ 1656 [2006] Env LR 627 at §§38-40; Abaco at §73. One problem with that response to the public interest is that it comes only at the very end of the case. That is why prospective costs orders were developed out of the Courts’ general statutory costs discretionary powers: see Abaco at §78.

CPR Part 46 Section IX deals with costs limits in Aarhus Convention claims. The definition of such a claim (see CPR 46.24(2)(a)) is referable to the legality of a body exercising public functions within the scope of Aarhus Article 9(1)-(3). The parties are agreed that this case falls squarely within that definition. The breadth of the Aarhus definition could include a polluter seeking to challenge an environmental protection measure, which is why I was unable to see the Aarhus scope as a rigid test for any uniformly intensity of reasonableness review: R (Fighting Dirty Ltd) v Environment Agency [2024] EWHC 2029 (Admin) at §34i. There are different sorts of Aarhus claims and there must be room for a context-specific approach to costs caps. There are Aarhus claims and there are environmental protection Aarhus claims.