UK Environment Threatened by the Scrappage of Legal Cost Caps
Author: Fran Whittaker-Wood
Published: Wednesday, 08 March 2017
It is estimated that a staggering 40,000 people die prematurely every year in the UK from chronic illnesses related to dangerous air pollution levels such as cancer, heart disease and asthma. Being able to challenge the government, big businesses and organisations when they threaten to pollute the environment is key to protecting our habitat and health.
How Can Individuals, Charities and Businesses Challenge Environmental Polluters?
The culprits behind environmental damage tend to be powerful corporations and the government, and so challenging their actions can be difficult. In an attempt to alleviate this, cost caps were introduced in 2013 under the UN-led Aarhus Convention when making legal cases against those responsible for polluting the environment.
The cost caps ensured that individuals and organisations could bring legal action against those causing harm to the environment because it wouldn’t be prohibitively expensive. In practice, this meant limits of £5000 for individuals bringing cases, and £10,000 for organisations.
The normal “loser pays rule” meant that the claimant could win back their legal costs from the defendant. If the claimant lost however, they would only be entitled to pay their own costs and that of the winning side at a fixed price.
Now however, these caps have been scrapped. Instead, if claimants lose a legal case there will be no automatic cost cap protection meaning they could be forced to pay unlimited legal costs of thousands of pounds.
Without Cost Caps What Will Happen?
Given that the cost caps themselves haven’t been in force for very long, it is easy to look to lessons from recent history to see what might happen without the caps. For example, in 1998 the WWF challenged the Scottish Government over the creation of a funicular railway in the Cairngorms National Park, but lost the case and were faced with a massive legal bill of over £200,000. Similarly, a local resident named Lilian Pallikaropoulos lost her challenge against the legality of the construction of a large cement works near her home in Rugby, leaving her facing a bill of just under £90,000.
The concerns now centre on the fear that the scrappage of these legal cost caps will dissuade individuals and organisations from attempting to bring environmental cases to court, given the excessively high legal costs that claimants could now face.
It is believed that if the government and large businesses take advantage of being financially stronger and more powerful than individuals and organisations, then they could in effect cause harm to the UK environment with little or no fear of serious repercussions.
Is the Environment Not Protected in Other Ways?
One of the major attempts to limit environmental harm in the UK is via the EU. Having introduced world-leading legislation on a range of environmental issues, the EU has helped for example, to prevent air and water pollution and to protect endangered animals.
Given the prospect of a hard Brexit however, these protections won’t be afforded unless the UK government has adopted the EU laws into English and Scottish law. The scrapping of the legal cost caps therefore puts our environment in an even more dangerous position.
What Can Environmental NGO’s and Charities Do About the Cost Caps Scrappage?
The Government is adamant that scrapping the cost caps will make little difference to people contemplating bringing a case to court since no one will be forced to pay costs above their means. However, they are ignoring the fact that just the prospect of unlimited legal costs will act as a deterrent to many individuals and organisations. As a result, many charities including ClientEarth, Friends of the Earth, and the RSPB, are all attempting to overturn the recent decision.
The Future and the Threat to the UK Environment
For the moment, it’s a case of sitting and waiting for the judicial review of the government’s decision to take place. Until something is changed back in favour of those bringing environmental cases, it is likely that there will continue to be a significant risk to the UK environment.