The Climate Change Commission is pursuing nearly $130,000 in court costs from activist lawyers, related to a High Court case last year, Marc Daalder reports
A climate activist group is facing down a six figure court bill for challenging the Government’s emissions budget decisions.
Lawyers for Climate Action (LCANZI) sued the Climate Change Commission and Climate Change Minister James Shaw in 2021, alleging they had made errors when calculating carbon targets which led to them setting unambitious goals. The High Court handed down its decision late last year, largely backing the Government’s approach but highlighting issues with the Zero Carbon Act that needed to be addressed.
While that decision is now being appealed by the climate-concerned lawyers, the commission is seeking to be compensated for some of its court costs in the meantime. A newsletter to LCANZI supporters last week said the total bill the group was facing is $128,491 – a figure confirmed by a spokesperson for the commission.
Jenny Cooper KC, president of LCANZI, told Newsroom the impact of having to pay that bill would be “significant”.
“We are a small organisation of volunteers and we’re funded by membership fees and relatively modest donations from members and supporters. We would have to fundraise to cover that.”
The group plans to argue in court that the litigation was in the public interest and should be exempted from costs.
Rod Carr, the chair of the climate commission, said the decision to apply for costs was not made “lightly”.
“The costs sought are those prescribed by the High Court rules only, which represent only a small part of the resources expended by the commission in defending this judicial review. The commission cannot judge whether a particular litigant’s claim has merit – those issues are best determined by the courts,” he said.
“I am not in a position to comment further on the application as the matter remains with the court.”
Victors in court cases in New Zealand are generally entitled to seek costs, with the specific amounts prescribed by High Court rules. There are public interest waivers available to reduce or entirely eliminate costs, in some cases.
David Bullock is the author of The Law of Costs, the definitive textbook on cost recovery in New Zealand. He told Newsroom the amount the commission is seeking sounds about right, but didn’t believe it should be seeking any costs in the first place.
“Ultimately, costs are at the discretion of the court. The court doesn’t have to take that approach – both as to who gets paid costs and as to the amount. But there is a specific rule in the High Court rules which allows the court, among other things, to either refuse to award costs or to reduce the amount where the party against whom costs are being sought is acting in the public interest,” he said.
“This seems like an obvious public interest case.”
Greenpeace, for example, rarely has costs awarded against it, Bullock said.
“I think in the case of the environment, that’s particularly profound, because the environment can’t represent itself in court. Environmental interests typically rely on someone fronting up to advocate for those positions,” he said.
“The other thing I would add is that there is quite a bit of academic writing which says that the risk of these sorts of costs awards has a really chilling effect, especially on environmental litigation.”
While the Government was also sued by LCANZI, Newsroom understands Crown Law has decided not to seek costs itself.
When the decision was first handed down, Shaw said it showed the importance of public interest litigation remaining accessible, though he didn’t comment on costs specifically.
“I think it is really important, actually, that the citizens of this country have the ability to hold the government and our institutions to account, and to be constantly probing the decisions that we use. We have very few checks and balances in our political system and so I’m a big believer in the ability of people to be able to have recourse to the courts if they feel it’s necessary,” he said at the time.
“I think it’s an important case because it tests our institutions and I think that that is a good thing. I think there will be findings, including some of the ones that we’ve discussed, but there’ll probably be others that I haven’t made it to in the judgment which might suggest areas for further investigation and refinement as well. And in that sense, I think that that is useful.”
On Monday, Shaw told Newsroom he still believed it was important to preserve access to litigation but the commission’s budget was also limited.
“We need to create an environment where the public can hold the Government to account through the courts. The Climate Change Commission is an independent organisation, and it is financially constrained. Climate litigation is increasing, we probably need to have a broader conversation about how to accommodate it.”