By Paul Davies and Samuel Pape

Key changes to the Protective Cost Order regime (PCO) came into force on 28 February 2017, which could directly limit the ability of individuals and organisations to bring environmental-related legal challenges in England and Wales.

Background

The PCO was introduced in 2013 in part due for the purposes of implementing the Aarhus Convention and its requirement that public bodies ensure that the public have access to procedures that are not “prohibitively expensive” for challenging decisions relating to the environment. For environmental-related proceedings, adverse legal costs were capped to £5,000 for individuals and £10,000 for organisations. Before these caps were introduced, the risks of substantial adverse costs orders could  deter organisations from bringing public interest litigation. For example, in 1998, WWF was ordered to pay the government’s legal costs of over £200,000 after losing its legal challenge against the construction of a funicular up Cairngorm Mountain.