Among recommendations in the recently published Jackson report on costs in civil litigation cases
are changes to the way costs are awarded. One effect of this may be to lead to an increase in challenges brought on environmental grounds. Under the present system, people are often dissuaded from bringing such challenges on the basis that they cannot afford to risk a hefty legal bill if they are unsuccessful. The report recommends that a person who brings a legal challenge should not risk having to pay the other side’s costs if they lose.
If the Government accepts the report's recommendations, substantial defendants would be required to pay their own costs regardless of the outcome of the case. This is likely to mean that not only would the Government and local authorities face increased litigation costs, but also that more people would be able to bring challenges without fear of the financial outcome.
Despite promoting access to environmental justice, implementation of thereport's recommendations are unlikely to lead to a flood of new environmental litigation if they are implemented. This is because there is already a control mechanism in place in the form of the judicial review of such cases, which requires that permission is obtained from the administrative court in order to take the matter to a substantive hearing.