4 - Aarhus Basics No 1: What is Aarhus costs protection?

The Aarhus Convention (Full title: The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Breaker of Chains, Mother of Dragons) is an international agreement promoting access to environmental information and public participation in environmental decision-making.  

Usually international treaties such as the Aarhus Convention have a hard time being relevant in the UK courts, as UK law does not generally allow individuals to allege breaches of international law unless those treaties are incorporated (given effect) via UK legislation. On the occasions where that has actually happened, the starting point – and usually the end point – is the wording of the legislation that gives effect to the treaty. 

The Aarhus Convention is slightly different though, in that an important part of it has been implemented via the Civil Procedure Rules: the provisions relating to the legal cost of environmental challenges.  

Article 9(4) provides that environmental decisions that fall within the ambit of the Convention shall be open to legal challenge via a procedure that is “fair, equitable, timely and not prohibitively expensive.” 

Anyone who has looked into a bringing judicial review in High Court knows that, absent a costs cap, there is a clear risk that proceedings could become “prohibitively expensive” for a claimant: not least because the default position in the UK is that the loser pays the winners costs.  

However, thanks to the UK’s interpretation of Article 9(4) of the Aarhus Convention, there is an important exception in the case of environmental challenges. CPR 45, Part VII provides that in environmental challenges, there will be a maximum adverse costs liability of £5,000 for individual claimants and £10,000 in all other cases (i.e. claims brought by NGOs, incorporated organisations etc). But Aarhus costs protection is a two-way street: if successful, there is a £35,000 limit on recovery from the Defendant. 

These cost capping provisions are what most people think of when the name ‘Aarhus’ comes up in the legal context. If you are a public law practitioner, you will have seen the tick box, “Is this an Aarhus Convention Claim?” on the bottom of claim form N461. 

In an era where legal aid is vanishingly hard to obtain, Aarhus costs protection is a vital tool for ensuring environmental challenges get to court. Litigation is still expensive for claimants: but in the UK environmental context, would be hard to argue that it is prohibitively expensive where the Aarhus costs cap applies. Which suggests that the regime is working well in ensuring that the UK is complying with Article 9(4) of the Convention. 

Authors:
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC).    She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.