FROM WILD JUSTICE — A WIN FOR COSTS GOING AGAINST NATURAL ENGLAND

Good morning, Last week we heard the brilliant news that Natural England’s attempt to hike our court costs for our upcoming legal challenge on Badger culls was blocked. Today, we can share with you the firm, and somewhat scathing, judgement handed down by The Honourable Mr Justice Fordham. Firstly, and because this has gone on for a while now, let’s look at the story so far… Where are we up to with our legal challenge against Natural England’s supplementary Badger cull licences? In 2024: July 2nd: Wild Justice and Badger Trust sent a pre-action letter to Natural England. August 8th: Following Natural England’s unsatisfactory response to our pre-action letter, we lodged our application for judicial review at the High Court. September 24th: Natural England applied to the court to have our costs cap raised for our legal challenge. November 4th: The Honourable Mr Justice Sweeting rejects our application for judicial review. November 8th: We lodge an appeal against this decision. In 2025: May 15th: The Honourable Mr Justice Fordham upholds our appeal and gives permission for our challenge to proceed. May 29th: We crowdfunded over £50k from you – our supporters - towards the costs of our case. October 16th: Natural England’s attempt to increase our costs failed in court. Our costs cap remains in place. December 16th & 17th: Our case is set to be heard in the High Court! The judgement Yesterday we received the full written judgement on our costs hearing, handed down by The Honourable Mr Justice Fordham. We have uploaded this document on our blog; it makes an interesting, if not lengthy and legally technical read – click here for the full judgement. In this newsletter we thought we’d bring you the highlights and some of our favourite quotes from the judge. “Skilfully constructed and presented as it was, I have had no hesitation in rejecting the application.” To decide whether the costs cap should be increased for Badger Trust and for us, as per Natural England’s request, Mr Justice Fordham had to consider two points. These were: Affordability: The judge had to assess if an increase in the level of the cap would make the case too expensive for Wild Justice and/or Badger Trust to continue with it. Reasonableness: The judge then had to assess whether an increase in the level of the cap would be ‘reasonable’, on an objective basis. This meant taking into account factors like how important our case on Badgers is for the environment, how strong our case is, and the effect this might have on our ability to bring future cases. Affordability: When it came to looking at affordability, the finances of both Wild Justice and Badger Trust were scrutinised in detail in court by Natural England for a significant amount of time – something noted by Mr Justice Fordham: “A considerable portion of a 3-hour hearing of the costs cap arguments – preceded by written submissions and pre-reading – were devoted to this exercise.” By taking the time to go to such levels of scrutiny, Natural England made the judge consider the implications of this approach, i.e. should it become something that happens regularly ahead of environmental legal challenges? “…I should be transparent. I was left feeling that it would not be a good thing for access to environmental justice if this sort of exercise were to become an established feature; still less a new norm.” Ultimately, on the point of affordability, Mr Justice Fordham concluded that increasing the cap could force both Wild Justice and Badger Trust to withdraw from the case. And, even if either part could technically afford it, it wouldn’t leave Wild Justice or Badger Trust in a good position. “If there is real-world affordability for a higher cap, it comes at a heavy cost." Objective Reasonableness: On the second point, the judgement is even clearer; increasing the caps for the case was not considered to be reasonable on an objective basis, with Mr Justice Fordham being left ‘wholly unpersuaded’ by Natural England’s argument. “Even if I were to assume in Natural England’s favour that what can be shown is […] real-world affordability […] I have still been left wholly unpersuaded by Natural England as to […] objective unreasonableness.” Perhaps most importantly for us, and for wider environmental challenges, Mr Justice Fordham recognised the importance of maintaining access to justice for individuals, community groups and organisations. “What is at stake is important for these two NGOs. It is also of real importance for the environment.” Recognising the significant financial commitment of undertaking legal challenges, whether won or lost, he explained that effective access to justice does not mean doing a legal case, going bust and having to start up again. “It is in the interests of access to environmental justice, with its public interest imperative, that NGOs like Wild Justice and Badger Trust should retain the viability to be “repeat players”. Objective reasonableness does not mean room for one, or even two, more cases. Proper access to environmental justice for a responsible NGO cannot mean a system of limited “credits”, after which the NGO is bust or effectively excluded, with the environment unprotected until someone has the energy to start up a new NGO with a new set of “credits”. Space to be a repeat player does not mean litigating everything with no ceiling and no filter.” And, in a significant and clear conclusion, Mr Justice Fordham outlined perfectly the reason why we bring these cases - for the environment (and wildlife) at the heart of our causes: “Finally, the signals which the law gives in environmental judicial review cases matter. Especially when the rationale of environmental costs caps is to avoid inappropriate deterrence or chilling effects. All of which is because something bigger than all of us is at stake: the environment which we share with each other, and with others, and for which we are responsible.” Suffice to say, we are pleased – and buoyed – by the results and content of this judgement. You can read our full press release, and the full judgement, on our blog here. It is right that organisations (and individuals, and community groups) be able to defend the environment in the courts, and for cost not to be a deterrent to them doing so. Natural England’s latest attempt to scare us away from challenging their unscientific supplementary Badger culls has failed – now we look forward to presenting our full case, with costs cap in place, at the High Court in December. We’ll leave you with one more quote, this time from Natural England’s blog, responding to their lost case: “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.” Good! Wild Justice (CEO: Bob Elliot. Directors: Chris Packham and Ruth Tingay). This is the 254th Wild Justice newsletter. This email was sent to you because you subscribed to it through the Wild Justice website or through an e-action or a petition where you ticked a box. Thank you. We will only use your personal details to send you the Wild Justice newsletter. We will not give or sell your details to anyone else. 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