The UK’s treaty obligations to provide legal remedies which are “adequate … effective …fair, equitable, timely and not prohibitively expensive” in environmental cases applies in all cases and in all courts.

UKELA, the UK Environmental Law Association, recently published the report of a Working Party chaired by Mr Justice Sullivan called Ensuring access to environmental justice in England & Wales.

The report’s primary conclusion is that the UK is at risk of being in breach of Article 9(4) of the Aarhus Convention which requires EU member states to have judicial procedures which “provide adequate and effective remedies…and be fair, equitable, timely and not prohibitively expensive” in environmental matters.

The report is primarily concerned, and rightly, with those elements which are peculiar to this type of litigation – principally the existence of a public interest. Much of the report is concerned with costs – not so much their overall reduction, but specifically with Protective Costs Orders. The risk of being stuck with a large and unquantifiable order for costs in the event that the claim is unsuccessful is a powerful disincentive to exercise the rights which the Aarhus Convention is designed to protect. That, of course, must be balanced against the potentially enormous losses caused to developers and others when injunctions delay work.

The Working Party expressly avoided recommendations which would depend upon immediate changes to the Rules. There are two references in their Report, however, which are worth picking up on for their wider implications.

One comes up (in paragraph 55) in the context of the requirement that the claimant must satisfy the court that they have an arguable case so as to secure permission for judicial review. Outside this specific context (i.e. where there is a statutory requirement to establish the merits in principle) one must be careful about encouraging the giving of a judicial view on merits before the parties have fully set out and argued their case. Nevertheless, the Working Party quotes with approval a passage from Lord Woolf’s 1989 Hamlyn Lectures: In practice the requirement, far from being an impediment to the individual litigant, can even be to his advantage since it enables a litigant expeditiously and cheaply to obtain the view of a High Court judge on the merits of his application.

This echoes something said to me recently on the US concept of Early Case Assessment – “people like to tell their story to a judge” and doing so helps lance the boil. The Commercial Court Recommendations touch (carefully) on the subject of judicial views (as opposed to a decision) on merits and on the user-used concept of early neutral evaluation (paragraphs 99 and 100). Like the Sullivan Working Party (and, indeed, the WP which prepared the Commercial Court Recommendations), I am not arguing for Rule changes here, merely suggesting that an early judicial view on merits may be a useful part of the case management exercise in cases which fall short of summary judgment or no case to answer situations.

The other point of wider significance arises in the Report’s section on case management and specifically in respect of disclosure. Paragraph 86 notes that the Pre-action Protocol for Judicial Review specifically encourages early disclosure of information relevant to the decision-making process. This imposes no greater disclosure obligation than in other proceedings, although there is a “duty of candour” in judicial review proceedings which “is the reason why court-ordered disclosure in judicial review has generally been far more restrained than in general civil litigation” as well as “strong practical reasons” why it is important to put on the table at an early stage the cards which may lead to a speedy conclusion as to the merits without litigation.

This does not always suit the parties (on either side) in the context of general civil litigation. Many cases have to be fought to a conclusion – because the law is obscure, because the facts really need to be drawn out of witnesses and challenged face to face, because the evidence on which justice may turn may be buried in document collections which must be culled and filtered, because the nature of the commercial (or human) relationship imposes it, or because wider implications turn on the outcome.

Many cases, however, get on a procedural treadmill which overtakes the commercial needs of the parties. The Commercial Court Recommendations say, in the context of early judicial views on the merits, that Commercial Court judges have always been more willing than others to give such a view and that this “reflects the fact that the Court was set up to assist businessmen to resolve their disputes and that a pragmatic and practical approach was required for this”.

Like much else in the Commercial Court, the principles apply elsewhere. The UK’s Aarhus Convention obligations to “provide adequate and effective remedies…and be fair, equitable, timely and not prohibitively expensive” are a pretty good statement of what parties want from all courts.

An early judicial view is not always appropriate, desirable or helpful. But the idea that getting the core material onto the table as early as possible seems objectively desirable, as does an early assessment of the costs likely to be incurred by taking one route rather than another. They are also, of course, required by the overriding objective, both expressly and by necessary implication from the requirement that everything be proportionate.

The state’s treaty and statutory obligations in the particular context of environmental claims are based on the premise that public interest requires that such claims be brought within the reach of those entitled to bring them. Nothing very different applies to ordinary civil claims. The aim here (my aim anyway) is not to suggest that litigation lawyers should turn all their swords into ploughshares, that lions should lie down with lambs, and all that worthy idealistic stuff, but to wonder if more commercial parties might turn to the courts (and therefore to litigation lawyers) if increased judicial intervention and a concomitant cultural change amongst practitioners were seen to achieve a faster turn-round rate in those cases which do not require a trial.

My specific interest, of course, is in the role of electronic disclosure in reaching towards that objective. Disclosure is often the biggest single cause of both delay and expense, yet it is an area almost completely neglected in judicial training. The “pragmatic and practical approach” referred to in the extract quoted above applies as much, if not more, to disclosure as it does to judicial views on the merits. Unlike the ability to form views on the merits, however, an understanding of technology does not accumulate with years of experience at the Bar, nor arrive fully-formed with the judicial wig and gown.

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