Developers and environmental activists will be interested to learn that the Government proposes important changes to the costs protection regime for claimants that challenge planning and environmental decisions and policies. Broadly, many of these challenges limit both the claimant and defendant's exposure to costs by imposing an overall cap on their liability if they lose. The consultation runs until 10 December 2015.
The Government's proposals would make it tougher for claimants to obtain costs protection for a number of reasons, and remove it entirely for the very first stage of proceedings. A tighter criteria for protection will introduce a requirement for claimants to file a statement of financial resources with the court if they want to try to get costs protection at all.
Claimants with a great deal of money may be disinclined to disclose their finances, or expose themselves to a judge that decides whether they are 'well off enough' to do without costs protection. For the poor or disadvantaged, it might be equally embarrassing to have to file a court statement explaining the extent of their poverty. The proposals for revision of the basic but well understood system are problematic for this and other reasons. My concern is that it introduces the potential for more court time being spent in legal argument about financial resources, rather than the planning or environmental decision.
Costs protection in environmental claims The consultation is aimed at those who may be involved in or affected by environmental legal challenges in England and Wales falling within the scope of the amendments made by the Public Participation Directive (2003/35/EC) (the relevant amendments have now been incorporated into recast versions of the Industrial Emissions Directive (2010/75/EU) and the EIA Directive (2011/92/EU)) or within the scope of the Aarhus Convention. This consultation is an opportunity for you to have your say on a package of reforms governing the costs protection rules for these environmental claims.