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

I think the rules were designed to be straightforwardly understood and applied. I do not think the rule-makers envisaged elaborate analysis or complicated reasoning. I have considered each of the statutory relevancies applicable to each Limb. I have considered all of the points made in writing and orally, and the entirety of the evidence filed. I see no vice in my expressing my reasons as concisely as possible, and focusing on the headline points.

Wild Justice is a small not for profit company funded by donations. It has two unpaid directors, a paid CEO, and two part-time members of staff. It exists for the purposes of education, campaigning, research and litigation. Litigation takes 75% of its financial resources, because litigation is expensive. It went into this litigation having committed and budgeted to pay a share of £47.5k, making allowance for the Aarhus £10k towards Natural England’s costs if the claim were to fail. It had cash at the bank of £57,576 on 8 October 2025, and the increase sought by Natural England would wipe out half of that. It has monthly outgoings of £7.2k. If there is real-world affordability for a higher cap, it comes at a heavy cost. I accept the witness statement evidence, which is maintained in circumstances of an ongoing duty of candour, that Wild Justice would reluctantly withdraw with a materially increased cap.

Badger Trust is a charity with a Board of Trustees. It is funded by donations. It has a Board of Trustees. It is required by the Charity Commission to have a reserves policy. Its reserves policy aims to ringfence cover for a projected 12 months’ of expenditure. Even if I take Mr Luckhurst’s presentation of the figures, there would at 31 December 2024 have been £326k reserves and projected expenditure of £310k. Badger Trust went into this litigation having committed and budgeted to pay a share of £31k, making allowance for the Aarhus £10k towards Natural England’s costs if the claim were to fail. If there is real-world affordability for a higher cap, it comes at a heavy cost. It would mean compromising a responsibly adopted reserves policy. Again, I accept the witness statement evidence, which is maintained in circumstances of an ongoing duty of candour, that Badger Trust would reluctantly withdraw with a materially increased cap.

It would undermine the public interest imperatives of facilitating access to environmental justice if varied caps impeded the pursuit of this claim. Mr Luckhurst told me it was not Natural England’s intention to “stifle” this claim. He reserved his position on whether a duty of candour applies to the reasons for pursuing a variation. I do not need to address that point for the purposes of my decision. I have looked at the position, as regard the present claim and the prospect of future claims as a repeat player, objectively and on the evidence.

The present claim is a viable claim. It has achieved permission through the filter of the permission stage, at which Natural England’s entirely legitimate resistance failed, having cranked up the costs. I would not say there is a strong prima facie case, as if applying the test associated with mandatory interim relief. The rule asks about “reasonable prospect of success” – not the strength of the claim – and it later asks about whether the claim is “frivolous” (CPR 46.27(3)(b)(ii) and (vi)). The phrase “reasonable prospect” has been described as more demanding than permission-stage arguability (Edwards SC at §28i). I will not pause to consider the fine distinction – if any – between “realistic” and “reasonable” prospects. It is not a test of “strong prima facie case”. It is not intended to turn Aarhus costs variations into dress rehearsals to assess the strength of the claim. I am satisfied that this claim has a reasonable prospect of success.

There is already, in effect, a doubled cap in place. If one of these two NGOs had been able to litigate the case, there would have been a single £10k cap. The issues and the workload would have been identical. But because two NGOs joined forces, there is £20k in place (CPR 46.26(4)).

What is at stake is important for these two NGOs. It is also of real importance for the environment. It is an environmental protection case. I do not see this as a case with “limited practical significance for the protection of the environment” (cf. Edwards SC at §36). It is about Natural England’s decision-making approach. It involves a backward looking legal audit. There is a bigger picture. Indeed, the very fact of that legal audit promotes a public interest, in an environmental protection context. These legal audits are important “for the environment” (CPR 46.27(3)(b)(iv)). This one is. If Natural England went wrong in public law terms in this case, it matters “for the environment”. It could certainly make a difference – whether direct and obvious or whether indirect and more subtle – looking forward.

This case is properly to be seen as a paradigm environmental protection case. It is undiluted by “individual economic interests” or mixed purposes or combination public/private interests. This is a clear point of distinction with the CPRE case, where the cap was varied for a single-issue interest group (POW: Protect Our Waverley), resisting a particular development, who could raise large sums of money from “local resident property owners” (§§13, 21).

The situation of Natural England as defendant is that it is a public authority acting as an environmental regulator. It has public interest aims and objectives. It operates with public money. Like Badger Trust and a reserves policy, there are stewardship responsibilities to which Mr Luckhurst is right to point. All of this will very often be the case in access to environmental justice judicial review cases. Natural England has won cases in the past and may win this one. Its legal costs are real, and will involve a deficit even if it succeeds. Sometimes public authorities have to accept the practical implications of legal audits and irrecoverable costs. It is always thus with legal aid, for reasons themselves the product of arrangements which address access to justice and the public interest. Natural England has an annual budget of £350m and a legal budget of £2.32m per year.

The situation of the Claimants includes crowdfunding endeavours. These have been successful. The target of £52,486 was slightly exceeded, with £57,180 being achieved within 5 months. Crowdfunding was always factored into the plan for the litigation. It has succeeded. There was, in my judgment, nothing unreasonable in the way it has been approached. The Claimants did not go for a bigger figure of £80,000 which they described as originally contemplated. They might have done. They might have succeeded. They might now succeed further, though time is tight for a December 2025 hearing. But even assuming that this supports Natural England as to real-world affordability under Limb (a) (CPR 46.27(3)(a) and (4)), it does not go further and indicate objective reasonableness. All of the arrangements put in place were eminently reasonable: enlisting an expert team of specialist lawyers, including a KC and a junior and specialist solicitors, to maximise the chances of succeeding; trying to avoid unnecessary satellite hearings, including as to permission and costs caps; lawyers acting at discounted rates; a balanced and sensibly pitched crowdfunding exercise. I see nothing to criticise; and indeed nothing which a Court can appropriately be asked to criticise.

It is in the interests of access to environmental justice, with its public interest imperative, that NGOs like Wild Justice and Badger Trust should retain the viability to be “repeat players”. Objective reasonableness does not mean room for one, or even two, more cases. Proper access to environmental justice for a responsible NGO cannot mean a system of limited “credits”, after which the NGO is bust or effectively excluded, with the environment unprotected until someone has the energy to start up a new NGO with a new set of “credits”. Space to be a repeat player does not mean litigating everything with no ceiling and no filter. Robust application of arguability and discretionary bars are designed as a filter. Two of the statutory relevancies are concerned with viability: reasonable prospect of success; and non-frivolous claims (CPR 46.27(3)(b)(ii) and (vi)). Objective reasonableness must mean Wild Justice and Badger Trust litigating this viable claim without the shadow that the next judicial review claim or claims is out of reach.

Finally, the signals which the law gives in environmental judicial review cases matter. Especially when the rationale of environmental costs caps is to avoid inappropriate deterrence or chilling effects. All of which is because something bigger than all of us is at stake: the environment which we share with each other, and with others, and for which we are responsible.