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

46.27.— Varying the limit on costs recoverable from a party in an Aarhus Convention claim. (1) The court may vary the amounts in rule 46.26 or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim. (2) The court may vary such an amount or remove such a limit only on an application made in accordance with paragraphs (5) to (7) ("an application to vary") and if satisfied that— (a) to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and (b) in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant. (3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either— (a) exceed the financial resources of the claimant; or (b) are objectively unreasonable having regard to— (i) the situation of the parties; (ii) whether the claimant has a reasonable prospect of success; (iii) the importance of what is at stake for the claimant; (iv) the importance of what is at stake for the environment; (v) the complexity of the relevant law and procedure; and (vi) whether the claim is frivolous. (4) When the court considers the financial resources of the claimant for the purposes of this rule, it must have regard to any financial support which any person has provided or is likely to provide to the claimant.

Subject to paragraph (6), an application to vary must— (a) if made by the claimant, be made in the claim form and provide the claimant's reasons why, if the variation were not made, the costs of the proceedings would be prohibitively expensive for the claimant; (b) if made by the defendant, be made in the acknowledgment of service and provide the defendant's reasons why, if the variation were made, the costs of the proceedings would not be prohibitively expensive for the claimant; and (c) be determined by the court at the earliest opportunity. (6) An application to vary may be made at a later stage if there has been a significant change in circumstances (including evidence that the schedule of the claimant's financial resources contained false or misleading information) which means that the proceedings would now— (a) be prohibitively expensive for the claimant if the variation were not made; or (b) not be prohibitively expensive for the claimant if the variation were made. (7) An application under paragraph (6) must— (a) if made by the claimant— (i) be accompanied by a revised schedule of the claimant's financial resources or confirmation that the claimant's financial resources have not changed; and (ii) provide reasons why the proceedings would now be prohibitively expensive for the claimant if the variation were not made; and (b) if made by the defendant, provide reasons why the proceedings would now not be prohibitively expensive for the claimant if the variation were made. (Rule 39.2(3)(c) makes provision for a hearing (or any part of it) to be in private if it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality.)