Polluter Pays

The Pro Bono Panel decided to undertake research on whether a “polluter pays” mechanism might be one of the ways of improving the incentives to address the two following issues:

(a) improving the quality of first-instance decision making, and
(b) improving state party compliance with tribunal rules and directions.

The panel undertook comparative research and reviewed previous recommendations on the introduction of such a mechanism in the UK, and why these had been unsuccessful. The panel then worked up a proposal, which differs from previous proposals in two ways:

(a) it is not linked to appeal outcomes, and
(b) it is formulated as a fee payable to HMCTS rather than as a costs order (its purpose being to reimburse HMCTS for the costs incurred in arranging the appeal).

A working group was established in Spring 2019 to get further feedback on the proposal. Members include tribunal judges, academics, lawyers, the Ministry of Justice and ombudsman schemes.

Update: this project has been on hold since the beginning of the COVID pandemic, because of the necessary changes to court and tribunal hearings. It is hoped that the project will be re-started as soon as practicable.