Protective Expenses Order for Hunterston Challenge

01.01.10

Protective Expenses Order for Hunterston Challenge

The first protective costs order to be awarded by a Scottish Court has been made, four years after a Court of Session ruling that such orders were competent. Mr McGinty, a campaigner challenging the Scottish Government's decision to include a new power station at Hunterston in the National Planning Framework, sought a "protective and restricted expenses order" to allow him to continue his challenge without fear of mounting legal expenses. This decision is of importance as part of a more general trend towards expanding the opportunities for judicial review in Scotland and will be of interest to public authorities who may, in appropriate cases, be denied the opportunity to recover legal expenses even where they defend successfully a challenge to their decision-making.

The purpose of a protective expenses order is to restrict the liability of the person raising judicial review proceedings and to give them certainty about their maximum potential exposure for payment of expenses before any substantive hearing of the case takes place. The availability of such orders was confirmed by Lord Glennie in McArthur v Lord Advocate 2006 SLT 170 which set out the criteria required to be satisfied before a court can make an order, which are:

  • the issues raised are of general public importance;
  • the public interest requires that those issues should be resolved;
  • he applicant has no private interest in the outcome of the case;
  • having regard to the financial resources of the applicant and the respondent and to the amount of costs that are likely to be involved, it is fair and just to make the order;
  • if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.

Mr McGinty was of limited means with modest savings and receiving a fortnightly jobseeker's allowance. The judicial review had been supported to the date of the hearing by donated funds but these were expected to cease and it was anticipated that Mr McGinty could face costs of up to £90,000 if the Government succeeded in its defence of the claim, and a further £80,000 of his own costs. Lady Dorrian who heard the case, was satisfied that the criteria set out above were met and that in the absence of a protective order Mr McGinty would probably abandon the case (and would be acting reasonably in doing so).

The Scottish Ministers accepted that the court had jurisdiction to make a protective expenses order, that the case was of sufficient importance to justify making such an order and that the issues raised in the petition were of genuine public importance. The court was also satisfied that Mr McGinty did not have any private interest in the outcome of the proceedings or financial connection with the site (albeit that Mr McGinty used the site recreationally for bird watching).

While the court could technically have made an order to reduce Mr McGinty's potential liability to nil it was considered appropriate instead to cap his liability at £30,000. Lady Dorian also considered it appropriate to limit the Scottish Ministers' liability - should Mr McGinty be successful in the judicial review - to recovery of the cost of a solicitor and senior counsel acting without a junior.

This is an important development particularly for judicial review actions where these are likely to raise public interest issues, affecting a number of individuals and organisations with an interest in the proceedings. In Scotland affected parties can be parties to such proceedings or apply to the court to be permitted to intervene but often the costs of taking part is an obstacle.