The UK Supreme Court is hearing the case of R (Foodrise Ltd) v HM Treasury & Secretary of State for Business and Trade today, 11 June.
This case could have significant ramifications for environmental litigation across the UK, particularly in relation to access to environmental justice.
Brought by Foodrise Ltd (“the Appellant”), a charity that is focused on transforming the food system for climate, nature and justice, the key issue is whether the Appellant’s judicial review falls within Article 9(3) of the Aarhus Convention. This would determine whether they can access costs protection, i.e. a cap on their potential exposure to costs arising from the judicial review proceedings.
Background
The High Court held that it did and proceeded to grant costs protection under the Aarhus Convention. The Court of Appeal disagreed, taking a narrower view of what constitutes a claim “relating to the environment”. The Supreme Court will now determine the correct approach.
Why does this matter?
For many public authorities, particularly those involved with planning and environmental decision making, Aarhus costs protection is often a preliminary matter to be dealt with. It allows applicants to proceed with greater certainty that they will be shielded from potentially significant costs in continuing with a challenge.
The Aarhus Convention can:
- Influence whether claims are brought at all, especially by individuals and NGOs
- Affect litigation strategy, settlement posture, and risk exposure
- Shape the volume and nature of challenges to environmental and planning decisions
Potential outcomes
If the Court of Appeal’s narrower approach is upheld, we may see:
- Fewer claims benefiting from automatic cost caps
- Greater scrutiny of whether judicial review grounds truly engage aspects of “environmental law”
- A potential recalibration of Aarhus arguments in planning cases (including in Northern Ireland).
If overturned, the scope of Aarhus protection could expand, reinforcing access to environmental challenges and potentially increasing the number of protected claims.
Although the underlying judicial review in Foodrise (relating to the UK–Australia trade arrangements) remains stayed, the Supreme Court’s ruling on costs is likely to have a far wider impact than the facts of the case itself.
This is one to watch closely, as the potential ripple effects for planning and environmental law judicial reviews, both in this jurisdiction and the rest of the UK, could be significant.
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This article has been produced for general information purposes and further advice should be sought from a professional advisor. Our Planning & Environment team at Cleaver Fulton Rankin can provide you with the specialist advice you need.
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