20 September 2018 | Comment | Article by Stephanie Eedy

The Law Society supports extending Qualified One Way Costs Shifting protection to nuisance claims

The Law Society has published its response to the Ministry of Justice’s (MOJ) consultation on the impact which part 2 Legal Aid Sentencing & Punishment of Offenders Act 2012 (LASPO) has had on access to justice and the legal profession. LASPO introduced various matters which included banning the ability for claimants to recover the cost of After the Event Insurance policies (which are taken out to fund opponent’s costs). For personal injury claims, it also introduced the principle of Qualified One Way Costs Shifting (QOCS) which, subject to certain limitations, means a claimant is not responsible for payment of his/her opponent’s costs in the event the claim does not succeed. One of the objectives of LASPO was to ensure all parties are given access to justice.

The Law Society has consulted with interested parties, including the legal profession, on the impact of such changes. Its published response states that the Law Society “strongly recommend that QOCS is extended to private nuisance proceedings to bring the UK into compliance with the Aarhus Convention”. At present, a person bringing a claim for private nuisance runs the risk of being responsible for the opponent’s legal costs should the claim not succeed. There is often a huge imbalance between the parties in such actions. Typically defendants in these types of claims are often large corporations who have the financial means to employ specialist legal teams to defend such claims, whereas claimants may be individuals with limited means and who cannot afford the cost of taking out an insurance policy to meet any potential unsuccessful claim. Often, therefore, claimants who otherwise have good prospects of success are naturally reluctant to run any risk and are refused access to the justice system in order to obtain the remedy and/or compensation sought.

The Law Society’s statement is hugely welcome to us in our group actions team. We made it aware of the joint complaint we had made to the Aarhus Convention Compliance Committee on behalf of the Environmental Law Foundation and an individual Alyson Austin. The principle of that complaint was that when the LASPO reforms were brought in claimants with environmental claims relating to nuisance and blight should have been given the same protection as claimants in personal injury cases. These personal injury claimants do not face the risk of ruinous legal costs if their claims are unsuccessful (unless it is shown that the claim is fraudulent or fundamentally dishonest).

We have been campaigning for some time that the principle of QOCS should be extended to claims for private nuisance. In December 2016 we reported that the United Nations Economic Commission for Europe (UNECE) had concluded that the UK is in breach of its obligations to provide access to justice in environmental matters. Read the blog here.

The Government is yet to issue its formal response to this declaration that environmental claims are in breach of the Aarhus Convention. The MOJ is expected to provide its submissions by 1 October 2018 on how it proposes to implement recommendations to ensure the UK complies.  Any changes, of course, are long overdue.  Hopefully, such changes it makes will improve access to justice for all those concerned with environmental blight.

 

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