Supreme Court Considers Environmental Costs Protection

On 11 June 2026, the Supreme Court will hear the appeal in the case of R (Foodrise Ltd [formerly Global Feedback]) v HM Treasury and Anor. We represent the Environmental Law Foundation (ELF), which successfully intervened in this appeal in the Supreme Court on what environmental law claims attract costs protection.  

The Aarhus Convention requires that claimants have access to justice when challenging breaches of ‘national law relating to the environment’ and that such legal procedures are ‘not prohibitively expensive.’  In the UK, this means that claimants can often benefit from costs caps in environmental matters.

The Court of Appeal held that a statutory provision requiring ‘regard to relevant international arrangements,’ and general public law grounds of judicial review should not be considered ‘national law relating to the environment,’ even where the subject matter is environmental.  The claimant in this case (Foodrise, formerly called Global Feedback) had argued that this provision required the Government to have regard to the UK’s climate obligations under the Paris Agreement when it made the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 to give effect to a trade agreement made with Australia.

ELF is an environmental law charity which provides pro bono legal advice, and often helps with judicial review challenges that require and obtain Aarhus costs protection. In its intervention, ELF argues that the Convention does not support the narrow reading given to it by the Court of Appeal.  ELF’s submissions focus in particular on what it says is the arbitrary distinction drawn by the Court of Appeal between statutory and ‘public law’ grounds that (it was said) do and do not attract protection.

The charity was also granted permission to adduce new evidence at the Supreme Court.  This evidence provides further context for the court about the effects the Court of Appeal judgment is already having on potential claimants and the impacts on environmental access to justice which the decision could bring.  ELF’s evidence notes that as a result of the decision, individuals and communities are already being advised that certain environmental claims which would have been understood to have clearly qualified for costs protection under prior caselaw are now uncertain.  ELF’s evidence notes that upholding the Court of Appeal’s judgment could mean that such claims are possible only for the more wealthy members of society.

Richard Wald KC and Jake Thorold of 39 Essex Chambers and Ravi S Mehta and Aislinn Kelly-Lyth of Blackstone Chambers are instructed counsel.