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

In a costs capping variation judgment of November 2018, the then DHCJ Nathalie Lieven QC described the equivalent caps in the then rules as “the normal amounts” and “the general position”: R (CPRE Surrey) v Waverley Borough Council [2018] EWHC 2969 (Admin) at §§9, 15. Mr Wolfe KC adopts that description. He goes further and says the caps in Rule 26 involve the rule-maker striking the balance, which a variation should not undermine or subvert. He cites the Government’s August 2012 consultation response which said: “the Government takes the view that a cap of £5,000 [or £10,000 for an organisation] is a proportionate amount to ask individual claimants to pay”. Mr Luckhurst says the Rule 26 Caps are just a default position, a starting point. He accepts the onus is on any applicant seeking a CPR 46.27 variation to show that it is appropriate under the provisions of that rule. He relies on the November 2016 Government response set out in RSPB [2017] EWHC 2309 (Admin) [2018] Env LR 13 at §21. That response spoke of “default starting points”. It also said “those applying to vary the costs caps will need to demonstrate clearly to the court that they have a valid case for a variation”. Mr Luckhurst does not quarrel with that.

In my judgment the significance of the Rule 26 Caps of £5k and £10k is as follows. They supply the initial answer in every Aarhus case, unless and until a Court identifies an appropriate variation based on assessing what would avoid the proceedings being prohibitively expensive. They are not subverted by a variation which would “go behind that figure”: cf. Edwards at §§32-33. But they are not just a placeholder. The Court is, at least, entitled to regard them as “normal” and “general”. That was the language used by the Court in CPRE. In my judgment, it is language which involves no error or misappreciation. The Rule 26 Caps can be taken to have been chosen by rule-makers, on a principled, informed and insightful basis. It can properly be taken that the rule-makers – acting in an informed and insightful way – would have been trying to do three things. First, to have close regard to the importance of access to environmental justice with its accompanying public interest imperative. Second, to avoid chilling consequences for responsible individuals and groups who would wish to access environmental justice in the public interest, by clear signalling accompanied by flexibility of application. Third, to minimise any proliferation of satellite litigation, including its own chilling implications. This is why there is an onus on a party wanting to vary them, whether up or down. This is why a clear demonstration would be needed for a variation, as Natural England accepts. That makes the Rule 26 Caps an even-handed starting point. They can be expected generally to provide an answer, at least in a paradigm environmental protection context, where a claimant seeks access to environmental justice, with undiluted public interest motivations. They are in the nature of a soft presumption. They are a basis for parties to be able to get on with environmental judicial review cases. All of which is why there is an onus, as Mr Luckhurst rightly accepts.

I do not think there is more, or less, to it than that. I do not think any of what I have said is a gloss on the rules. I do not think any of is cumbersome or sophisticated. In fact, I think it is very straightforward and easy to understand and apply. It means the Rule 26 Caps involve giving a signal, in a litigation context where signalling particularly matters. They are not just a placeholder. A variation decision does not start with a clean-sheet, as if the Rule 26 Caps did not exist or their levels were unknown.

To understand this, take the following familiar example. There is a rule which says, absent a variation, a judicial review defendant has 35 days to file detailed grounds (CPR 54.14). The general proviso allowing always for a variation has already been prescribed (CPR 3.1(2)(a)). Any defendant in any judicial review case can ask for an enlarging variation. Any claimant in any judicial review can ask for an abridging variation. The Court will approach any requested variation on its merits. A variation is not a subversion of a carefully designed balance. But when the Court considers a variation, it does not start with a clean slate. It does so against its understanding that 35 days is a normal or general rule. It was written by rule-makers who thought about the intended speedy audit of judicial review, who reached an informed assessment, intending to provide a generally appropriate and workable answer. Certainly, in paradigm cases. It is in the nature of a soft presumption. None of which involves complexity or sophistication.