The Badger Trust & Anor, R (on the application of) v Natural England

In an Aarhus environmental judicial review, the prescribed costs caps are the initial answer and a soft presumption, not a clean-sheet placeholder. A variation requires a clear demonstration under CPR 46.27 that the proceedings would not be prohibitively expensive.

Prohibitive expensiveness has two independent limbs. Limb (a) concerns the claimant’s real-world affordability, including available third-party support. Limb (b) concerns objective unreasonableness, assessed facilitatatively in light of access to environmental justice and the six prescribed factors. It is not a second affordability test or a dress rehearsal on the merits.

The court also held that redactions in documents filed after proceedings begin engage the open justice principle and may require prompt evidence and an application for protective orders.

The claimants, Wild Justice and the Badger Trust, brought judicial review proceedings concerning Natural England’s decision to issue or renew supplementary badger-cull licences. Permission had been granted and the substantive hearing was pending.

Natural England applied for an order under CPR 46.27 increasing the claimants’ Aarhus costs caps. It also sought protective arrangements for redacted decision-making documents, including a confidential bundle and notice of any application by a non-party to inspect it.

The issues were whether the redactions should remain subject to tailored access restrictions and whether the proposed increased caps would make the proceedings prohibitively expensive for the claimants.

1. The Redactions Application was granted in the agreed form. A confidential unredacted bundle could be filed. Any non-party application to inspect it had to be made on notice and determined at a hearing at which the parties could make submissions. Confidentiality-ring arrangements were approved.

2. Once proceedings have commenced, a party responsible for redactions must reconsider documents forming part of the court papers, including documents disclosed pre-action and filed by another party. The court may require a focused explanation, witness evidence and a prompt application. The open justice principle cannot be contracted out of by agreement.

3. The Aarhus costs caps in CPR 46.26 are the initial answer in every Aarhus claim unless varied. They are normal and general amounts and operate as a soft presumption. A variation does not begin with a clean sheet, and the applicant bears the onus of clearly demonstrating that variation is appropriate.

4. Under CPR 46.27(3), prohibitive expensiveness has two independent limbs. Limb (a) asks whether likely costs exceed the claimant’s financial resources, having regard to third-party financial support under rule 46.27(4). It is a practical means test concerned with the actual claimant’s real-world ability to pay.

5. Limb (b) asks whether likely costs are objectively unreasonable, having regard to the six mandatory factors. It is not a second affordability test. It protects access to environmental justice even where costs are technically affordable. The assessment is context-specific and must facilitate responsible and viable environmental claims, while remaining proportionate and predictable.

6. The claim was viable, had a reasonable prospect of success and was not frivolous. It was a paradigm environmental protection case, undiluted by private economic interests. The claimants’ resources, reserves policies and successful crowdfunding could support affordability under limb (a), but did not make increased caps objectively reasonable under limb (b).

7. The application to increase the caps to £20,000 for Wild Justice and £30,000 for the Badger Trust, or to an intermediate level, was dismissed. Natural England was ordered to pay the claimants’ costs of that application. The Redactions Application costs were costs in the case.

First-instance judicial review decision. Permission had previously been granted at a renewal hearing, with the substantive hearing listed separately.