People rightly worry about the exposure to the costs of opponents in litigation. Fortunately, there are special rules for environmental cases. Insurance may also be of assistance in certain circumstances.

Environmental cases should be affordable

We have been in the forefront of ensuring effective implementation of the United Nations Aarhus Convention, which among other things requires that taking environmental cases should not be “prohibitively expensive”.

Protective costs orders

The practical result for planning and environmental judicial reviews and statutory challenges is that one can obtain protection from opponents’ costs at the stage of consideration of an application for permission to apply to the Court to proceed with a claim. Normally the Court will grant a so-called “Protective Costs Order” (“PCO”) even when refusing permission. For individuals this normally limits exposure to £5,000 to the end of the High Court case; with any other type of claimant, the amount is £10,000. In return, you are limited to being able to recover a maximum of £35,000 (a so-called “reciprocal cap”) if you are successful. It is possible to apply for a lower cap if you really cannot afford the default amount. The basic question is whether costs overall would make the claim both subjectively and objectively prohibitively expensive if protection is not given. Obtaining a PCO does require disclosure of your personal resources and contributions from others, a so-called “statement of financial resources”. The scheme is (relatively) straightforward, and we advise on the best approach to costs protection on a case by case basis. Being able usually to remove the fear of exposure to unlimited costs has been hugely helpful to access to justice in this area.

Protection in nuisance cases

For nuisance cases the position is different. The same rules do not (at least usually) apply in nuisance cases (and we say the UK is in breach of the Aarhus Convention as a result: we continue to make representations to its Compliance Committee about this). However, in statutory nuisance cases, a responsible claimant is at almost no risk of paying opponents’ costs because the proceedings are brought in a criminal (Magistrates) court. It is an open question whether in some civil nuisance cases protection may be given. Insurance may assist both own-side costs and adverse costs.