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International Restructuring Newswire
Welcome to the Q1 2025 edition of the Norton Rose Fulbright International Restructuring Newswire.
Global | Publication | July 2017
The UK is a signatory to the Aarhus Convention which requires that all signatory states must ensure access to environmental justice. The Convention requires that legal proceedings which fall within its scope must not be prohibitively expensive. Following EU enforcement proceedings brought against the UK Government in 2013, new provisions where introduced into the Civil Procedure Rules (CPR) to limit costs that could be awarded against parties in judicial review proceedings that fell within the scope of the Convention. Recent changes introduced by the Amendment Rules have introduced a broader range of claims to be included in the regime. Cost caps are no longer fixed and cost-limits will be determined by the courts on a case-by-case basis. While the changes may seek to ensure access to justice for environmental claimants, it remains to be seen whether the increased flexibility of the court in setting cost caps will have this effect.
A protective cost order (PCO) is an order which limits the potential liability of one or more parties to litigation in court to pay the court fees of the other party. Its purpose is to restrict the financial burden imposed on the parties to the dispute and, in so doing, preserve access to justice by the public by preventing the costs of litigation from becoming ‘prohibitively’ high.
The ability of the Court to make PCOs in respect of ‘Aarhus Convention claims’ is set out in Part 45 of the CPR. ‘Aarhus Convention claims’ were defined as judicial review claims (whereby the Court is asked to examine the activities of a public body to determine whether they were lawful) which fall within ‘the scope of the Convention’ and which relate to access to environmental information and environmental justice. This narrow scope of eligibility has meant that claims including appeals against planning decisions and public nuisance matters on environmental grounds were excluded, despite falling within the scope of the Convention.
CPR Part 45 also imposed a fixed cap on PCOs which could be made by the courts, restricting the liability of claimants to £5,000 (if claiming as an individual and £10,000 in all other cases) and of defendants to £35,000.
The Civil Procedure (Amendment) Rules 2017 make a number of changes to the protective costs regime which apply to Aarhus Convention claims commenced on or after February 28, 2017 as follows.
The amended Part 45 of the CPR contains information for the Court when deciding what is ‘prohibitively expensive’ and whether the PCO will be limited to £5,000 in the case of an individual, which will need to be considered before a claim is made. This might have the effect of reducing the number of claims but on the other hand the scope of such claims has widened so it is also likely that the number of PCOs may increase.
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Welcome to the Q1 2025 edition of the Norton Rose Fulbright International Restructuring Newswire.
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