On 16th October, the High Court decided against an application by Natural England to increase the amount of costs that claimants, The Badger Trust and Wild Justice, should pay back to Natural England from £10,000 to £30,000 and £20,000 respectively, in the event that we were successful in an ongoing litigation. This blog explains the context.
Firstly, the judicial review system to challenge decisions made by public bodies is crucial in a democratic society. Secondly, Natural England values the principles of the Aarhus Convention and the system it provides to enable anyone to seek environmental justice. While the existing costs cap position is very much Natural England's default position, as with all publicly funded bodies, we must make careful and appropriate use of taxpayer funding.
The decision to make the application in this case was exceptional for several reasons, including our view on the strength of the case, the government's commitment to phase out lethal control of badgers and unrecovered public money in previous unsuccessful litigation by claimants on this subject. We considered that there were grounds for requesting more of a contribution toward Natural England's costs if we were successful in the proceedings. We did not consider that this amount would prohibit or impede the Claimants from bringing their claim.
We have never looked to use the procedure in the Civil Procedure Rules to increase a costs cap before and we might never make this sort of application again. We respect the judgment of the court that the standard cap should remain in place for this claim and given the limited caselaw around this, we welcome the clarity that the court has brought.
Note – the hearing on 16th October was part of the ongoing judicial review by the Badger Trust and Wild Justice of Natural England’s decision to grant licences for the control of badgers in May 2024 as part of the control of bovine tuberculosis. The substantive hearing is listed for 16-17 December 2025.
The government continues to phase out lethal control of badgers. No new intensive badger control licences in the High Risk and Edge areas of England have been issued since August 2022. The licensing of both intensive and supplementary badger control is on a steep downward trajectory, with the final round of licence authorisations and badger control taking place in 2025. All remaining licences of this type will then expire in January 2026.
The “new” supplementary badger control licences referred to by the complainant are for existing licences that have completed intensive badger control and were therefore eligible to apply for a supplementary badger control licence.
Leave a comment