18 Oct, 2012

WWF has today welcomed the Opinion of Advocate-General Kokott [1] on the meaning of ‘prohibitive expense’ in environmental legal proceedings. AG Kokott’s Opinion basically confirms that unless a claimant has an extensive economic interest in the outcome of a case, they cannot be expected to bear high court costs. The European Court has been asked to rule on the concept by the UK Supreme Court in the case of Edwards [2]. The final CJEU judgment will have significant implications for proposals in the UK to address costs in environmental cases and environmental litigants across the European Union.


Both EU law and the UNECE Aarhus Convention oblige Member States and contracting Parties to ensure that environmental legal proceedings are ‘not prohibitively expensive’ [3].  This means that ordinary citizens and civil society groups should be able to afford to go to court and challenge the decisions of public and private bodies that threaten the environment.


Environmental groups in the UK have long argued that current court rules make access to justice unaffordable for people and groups who want to use the law to protect the environment [4].  Established rules mean that environmental campaigners who take their case to the Courts cannot rule out the possibility that they will be ordered to pay tens of thousands of pounds to the other side – usually the Government – if they lose.


Research by the European Commission has also shown that the UK has one of the worst cost regimes for access to justice in environmental matters, and that the current costs rules represent a “significant obstacle to access to justice in the United Kingdom” [5].


The AG’s Opinion indicates that the European Court will take a hard line against the UK in forthcoming infraction proceedings concerning the high costs of legal action arising from a complaint lodged by WWF on behalf of the Coalition for Access to Justice for the Environment (CAJE) [6] in 2005 [7]. The full CJEU judgment is expected early in 2013.


Carol Day, solicitor at WWF said: “Legal action to protect the environment has always been confined to either the very rich or the very poor, with the vast majority of concerned citizens powerless to challenge the decisions of public bodies.  The AG’s Opinion puts the Government on notice that more must be done if the UK is not to fall foul of the European Court”.


Picture credit: Andrew Goldstraw

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