R (BADGER TRUST AND WILD JUSTICE) v NATURAL ENGLAND [2025] EWHC 2761 (Admin)

Courts will refuse applications to vary Aarhus costs caps upward where increased costs would be objectively unreasonable, even if claimants can afford them, particularly in paradigm environmental protection cases where repeat player viability matters.

  • The default costs caps under CPR 46.26 are not merely a starting point but represent a normal and general position, chosen by the rule-maker on a principled basis to facilitate access to environmental justice while minimising satellite litigation.
  • When considering an application to vary the default Aarhus costs caps, the court is entitled to regard them as embodying a soft presumption, and the onus is on the applicant to clearly demonstrate that a variation is appropriate.
  • The objective unreasonableness test under CPR 46.27(3)(b) operates as a freestanding protection even where costs are real-world affordable for the claimant, establishing a standard to promote access to environmental justice assessed by reference to the six mandatory factors.
  • In assessing objective unreasonableness under CPR 46.27(3)(b), the court must have regard to the need for responsible environmental non-governmental organisations to retain the viability to be repeat players in environmental litigation.
  • The situation of the parties under CPR 46.27(3)(b)(i) can include the resources and access to third-party funding of a claimant, but this cannot be used to subvert the rule by driving a conclusion that real-world affordability alone indicates objective reasonableness.