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Affordable justice for environmental cases?

16 December 2010

The supreme court has cleared the way for the European Court of Justice (ECJ) to cut the cost of environmental litigation. In line with the doctrine that environmental litigation must not be ‘prohibitively expensive’ under Article 9 of the Aarhus Convention, the supreme court appeal committee ruled that the decision to refuse a claimant a protective costs order by the House of Lords was subjective and that doubt had subsequently been cast on that approach by case law, meaning that the matter should be reopened. A reference was also made to the ECJ given the uncertainty as to the current position on protective costs.

Though the decision by the supreme judges has only stayed the costs order pending a preliminary ruling from the ECJ it is hoped by environmental groups that in the future protective costs orders will be easier to obtain. If that is the outcome of the reference to the ECJ, it is possible that more speculative and boundary pushing environmental litigation will ensue.

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