Aarhus Costs Protection Rules Amended

The Civil Procedure (Amendment) Rules 2018 (SI 2018/239), made on 23 February 2018, will come into force on 6 April 2018.

They are intended to clarify the Civil Procedure Rules (CPR) in relation to Aarhus Costs Protection following the September 2017 judgment in R (The Royal Society for the Protection of Birds, Friends of the Earth Ltd and another v Secretary of State for Justice and another [2017] EWHC 2309 (Admin), in which a number of NGOs challenged the February 2017 amendments to the CPR for Aarhus Convention claims.

Rule 45.42(1)(b), which describes the financial information a claimant is required to provide if seeking the benefit of the costs protection provisions, is removed and replaced with a provision that mirrors the requirements for applications for costs capping orders in judicial review claims which are not Aarhus Convention claims.

As a consequence, a claimant will now need to file and serve with the claim form, a schedule of their financial resources, verified with a statement of truth, which provides details of—

  • the claimant’s significant assets, liabilities, income and expenditure; and
  • in relation to any financial support which any person has provided or is likely to provide to the claimant, the aggregate amount which has been provided and which is likely to be provided.

A provision is introduced into rule 45.22(2) that confirms that the court may only vary the costs cap (or remove altogether the limits on liability) on an application by a claimant or defendant.

Finally, at the end of rule 45.44 a provision is inserted to make it clear that an application to vary such a costs cap (or remove a limit) must be made at the outset and determined by the court at the earliest opportunity; and that an application may only be made at a later stage in the process if there has been significant change in circumstances.