Special Report - Avoiding A Civil Action

Consider environmental risks carefully and act quickly to avoid damaging publicity and a costly legal battle. Neil Stockdale discusses the rise of environmental litigation.

Historically, environmental protection has been the remit of Parliament and criminal law, but there is now increasing evidence of environmental civil actions being pursued. The Court Service web site currently details four group actions proceeding through the courts in England and Wales, and this is probably the tip of the iceberg.

The longest-running case relates to the Nantygwyddon landfill site in South Wales, where 128 local residents are seeking damages for ill health and nuisance as result of toxic emissions dating back to 1995. The claim against 3C Waste Ltd, now part of the Waste Recycling Group, is in excess of £2m. A similar claim is being pursued against landfill giants Biffa over a site in Merthyr Tydfil involving 238 claims.

These are not the first group actions over environmental impacts. In June 2000, Flexsys Chemicals agreed an out-of-court settlement in the region of £180,000 plus costs with 304 local residents who had complained of symptoms of hydrogen sulphide poisoning following a gas leak.

Environmental group litigation is not new, but people now seem to be more prepared to go to the courts if they feel that there is an unwarranted interference with their environment. A number of developments in recent years may have contributed to this.

Extensive media coverage has heightened public awareness of environmental issues. The World Summit on Sustainable Development understandably attracted much coverage, and the local media often mirror this kind of attention.

When local issues do arise, those with common concerns around the country or from further afield can easily form alliances and share information through the internet. The National Assembly for Wales recently involved the Agency for Toxic Substances and Disease Registry, Atlanta, in an ongoing investigation into health concerns relating to the Nantygwyddon landfill site. The residents action group originally brought the Agency’s expertise to the attention of officials, having contacted it over the internet. Local action groups now use their own websites to share experiences and information.

Information on site operations and prosecutions can be requested under the Access to Environmental Information Regulations 1992. The Government will come under further pressure to legislate to improve the mechanism of access to environmental information following the anticipated ratification of the Aarhus Convention 2001, the core principles of which are access to information, public participation and access to justice in environmental matters.

The Environment Agency publishes scores (available on its website) under the Operator and Pollution Risk Appraisal scheme (OPRA). This scheme aims to provide a tool to assess the environmental risks posed by industrial sites and the systems in place to manage them. The OPRA scores are likely to be of interest both to those living near industrial sites and to insurers in terms of risk assessment.

There are an increasing number of bodies able to assist members of the public. The Environmental Law Foundation has recently celebrated its tenth year and has considerable experience of helping those with environmental problems, or who want to take action to protect the environment. ELF members include environmental consultants, solicitors and barristers.

There have also been significant changes in the law. The Human Rights Act 1998 became law in October 2000 (having partly been in force in Scotland and Wales before then). It transposes rights set out in the European Convention on Human Rights into UK law. Article 8 enshrines the right to respect for private home and family life and Article 1 of Protocol 1, the right to peaceful enjoyment of possessions. The Human Rights Act has already been cited in environmental group actions such as Mckenna & others v British Aluminium Ltd, which relates to allegations of emissions and noise pollution.

In 1999 new group action rules were introduced in England and Wales. Previously there had been no formal procedures for bringing a group action, and group actions had been dealt with on an ad hoc basis, often leading to disproportionate costs and wasteful court skirmishes. The new procedural code has brought cohesion to the management of these claims. It also gives the courts the power to make orders dealing with costs, and, crucially, gives force to the concept of claimants sharing common costs of the action.

The funding of environmental litigation has also changed radically in recent years. Legal Aid has been withdrawn for most cases, but is still available in group actions where there is a wider public interest. Following the introduction of the Access to Justice Act 1999, solicitors can now offer clients ‘no win no fee’ agreements, backed up by insurance. These can present a means by which the public can fund their claims.

Responding to the risk
All this means that it is vital that businesses have a strategy for responding to the threat of civil claims, especially as cases of this type are of great media interest. Businesses should consider their relationship with the public and the media, take positive action to resolve problems, and ensure they have effective PR in place.

Making greater use of technology can assist in early identification of potential claims or problematic sites. Biffa Waste now operates an open house comments section on its website inviting ‘constructive, lively debate’ and encouraging readers to ‘raise new issues for comment.’

If litigation does loom, remember that the Civil Procedure Rules, which govern the conduct of these cases, advocate pre-litigation exchange of information and discussion of issues. Costs penalties can be imposed for disregarding the spirit of the rules, and it is important to recognise the need to address matters quickly. A key stage is a pre-litigation meeting, where parties can openly discuss whether the case can be resolved through mediation.

Often these cases are not about money but arise out of genuine concern. Specialist lawyers with experience of handling claims from either perspective can play an important role in the swift resolution of environmental claims. If businesses act quickly and are transparent in their approach, litigation can often be avoided.

Neil Stockdale is head of the environment group at Hugh James Solicitors, Tel: 01685 371122, E-mail: neil.stockdale@hughjames.com .