Application of CJEU guidance relating to Aarhus Convention duty to ensure environmental cases “not prohibitively expensive”


Re: R (Edwards & Anor) v Environment Agency & Ors (No 2) [2013] UKSC 78

The dispute arose out of an order for costs of an appeal in the House of Lords made in favour of the respondents. The Supreme Court had made a reference to the CJEU for guidance relating to the obligation under the Aarhus Convention to ensure that environmental cases are “not prohibitively expensive”.  The following could be extracted from the CJEU’s ruling, inter alia: the cost must not exceed the financial resources of the person concerned nor appear to be objectively unreasonable; the court could consider “whether the claimant has a reasonable prospect of success, the importance of what is at stake . . . , the complexity of the relevant law and procedure, the potentially frivolous nature of the claim . . . .”; and that a claimant had not been deterred from carrying on the proceedings was not determinative.

David Wolfe QC was involved in this case.