[co-author: Marie Davoise]

On 31 July, Lord Justice Jackson published a report containing a series of proposals on civil litigation costs. While mainly focused on fixed recoverable costs, the report also contained a radical suggestion: to extend the claimant-friendly rules applying to environmental claims (which derive from the Aarhus Convention) to all judicial review claims. However, this is not the first time this idea has been proposed: Jackson LJ first made the case for extending Aarhus to all JRs in 2009.  Below, we look at the 2009 proposal and what has changed since then.

The Aarhus Convention

The Aarhus Convention is a pillar of environmental law. It was signed in 1998, came into force on 30 October 2001, and was ratified by the United Kingdom in 2005. With 47 signatories, the Aarhus Convention covers almost all of Europe and some of Central Asia.

A novel type of instrument for environmental justice, the Aarhus Convention requires, among other things, that review procedures for environmental claims should be fair, equitable, timely and – crucially – not prohibitively expensive.

The 2009 Jackson Report and the unimplemented proposal on costs

In December 2009, Lord Justice Jackson published an extensive and ground-breaking report on civil litigation costs and case management procedures. Civil litigation costs, the report concluded, are often disproportionate and impede access to justice in some areas. Jackson LJ offered proposals for a coherent package of reforms, designed to control costs and promote access to justice: the so-called “Jackson reforms”.

One proposal concerned the costs of claims brought under Aarhus Convention. Jackson LJ suggested qualified one way costs shifting (i.e. claimant recovers costs if s/he wins, and does not have to pay costs if s/he loses) as a way to comply with the “no prohibitive expense” requirement.  Jackson suggested that this was “the simplest and most obvious way to comply with the UK’s obligations under the Aarhus Convention in respect of environmental judicial review cases”.  He also suggested that this system should be extended to all judicial review claims, and not just those brought under the Aarhus Convention.

Following the Report, the Court of Appeal continued to state (see here at [17] or here at [33]) that it was undesirable to have different costs rules for different types of JR.  A consensus started to emerge that there should be a uniform regime for all judicial review cases.

Since Jackson’s first report, there have been three notable developments.

(i) On 1 April 2013, an optional regime was introduced for environmental JR claims by section VII of CPR Part 45, under which a claimant’s liability was capped at £5,000 (or £10,000 when claiming as or on behalf of a business) and a defendant’s liability was capped at £35,000.

(ii) On 8 August 2016, a new regime of ‘judicial review costs capping orders’ came into force. This enables the court to impose caps on each party’s liability, having regard to a wide variety of circumstances, including a claimant’s means.

(iii) On 28 February 2017, the Aarhus rules, the optional regime mentioned at (i) introduced to comply with the “no prohibitive expense” requirement of the Aarhus Convention, were amended. Claimants wishing to benefit from the rules must now submit a statement of means, including any financial support provided by others. In the light of that information, the court has power to vary the default cost caps.

The 2017 Supplemental Jackson Report

On 31 July 2017, Jackson LJ published a supplemental report on fixed recoverable costs (accessible here).

The 2017 report starts by noting that the Government has not taken up his recommendation that qualified one way costs shifting be introduced for all judicial review claims.   He goes on to highlight the importance of judicial review as a crucial means by which citizens can challenge the lawfulness of public authorities’ decisions, actions and omissions. Given the special place of judicial review in our constitutional system, Jackson says, an effectively functioning system of judicial review is central to the rule of law.

The problem, in Jackson’s view, is that JR is becoming less, rather than more, accessible.  This is particularly the result of the current system of legal aid funding, which has such strict financial limits that “many deserving claimants of modest means do not qualify for assistance“.  This makes the need for reform on costs for judicial review, so that they reflect the societal and constitutional value of such proceedings, all the more pressing.

What next?

For obvious reasons, the Government might not be keen on facilitating financial access to claims for judicial review proceedings. The 2017 report notes that government lawyers consulted for the report were not enthusiastic about the idea of extending the Aarhus costs regime to all judicial review claims.

But judicial review is important, and Jackson LJ’s latest report emphasises that once again.  As the voices in support of his ideas continue, the Government may begin to find them harder to ignore.