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Supreme Court rules on environmental costs considerations

12 December 2013

The Supreme Court has ruled on appropriate costs following an ECJ reference as to the test to be applied to ensure that environmental judicial reviews were not prohibitively expensive.

A number of significant points could be extracted from the ECJ decision:

1. The test was not purely subjective and should not exceed the financial resources of the claimant, or “appear objectively unreasonable”

2. No definitive guidance has been given as to what is “objectively unreasonable”

3. The Court can take account of the “merits” of the case, including the prospect of success, importance to the claimant and environment, complexity of the relevant law, and potentially frivolous nature of the claim at different stages

4. That fact that the claimant pursued the claim does not determine the issue of costs

5. The same criteria applied on appeal as at first instance

This provides guidance when making costs submissions to the Court but whether costs are “prohibitively expensive” in any given case is still far from clear.

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