Public Law

The recent decision of Lord Stewart in favour of the pressure group Road Sense marks a further significant step in the development of ‘protective expenses orders’ in Scottish public interest litigation. Lord Stewart concluded that he was ‘bound’ to make a protective expenses order in this case to ensure that Road Sense’s Court of Session appeal against the Scottish Ministers’ decision to proceed with the Aberdeen Western Peripheral Route project is compliant with the access to justice provisions of the Environmental Impact Assessment Directive. Those provisions – which were included in the Directive as a result of the Aarhus Convention – are focused on enabling  members of the public to participate effectively in decisions about environmental matters, including participation in court actions in which environmental decisions might be challenged. Such participation should not, in the words of the Directive, be ‘prohibitively expensive’.

As many of you following this blog will know, a protective expenses order can in many ways be looked at as an ‘insurance policy’ for a party who has challenged a decision of a public authority: it is an order by the Court at the outset of a case, limiting in advance the amount of expenses which a member of the public might have to pay to the public authority if the case fails. Well known in the English courts, protective expenses orders in Scotland are still relatively new and our courts are still getting to grips with when, and at what level, a PEO should be made.

There is a hint from Lord Stewart’s opinion that the hearing before him was something of a marathon. He notes that Counsel for the Scottish Ministers and for Roadsense were agreed ‘without irony’ that the access to justice provisions of the Directive were ‘directly effective’ but that “I say ‘irony’ because Counsel then debated the meaning for one-and-a-half days”. More importantly, he says in terms that the PEO procedure is the appropriate means of giving effect in Scotland to the requirements of the Directive – not least because “No other way of implementing the Directive in Scotland has been suggested.”

Lord Stewart’s analysis of the European and domestic law is helpful for anyone seeking or opposing the grant of a PEO. The most difficult issue in these cases does remain, though, the level at which the PEO should be granted and how to interpret the phrase ‘prohibitively expensive’. That concept is to be assessed from an ‘objective’ point of view rather than from the perspective of the particular person raising a challenge. Lord Stewart concluded that the total likely resources available to Road Sense was around £78k. Their own legal bills were likely to be around £30k and without a PEO the costs they might have to pay the Government would be between £50k and £60k. All in all, Lord Stewart concluded that capping that amount at £40k would be appropriate.

Christine O'Neill

Partner & Chairman at Brodies LLP
Christine is Chairman of Brodies LLP and leads our Public Law Litigation and Parliamentary team. She has considerable experience of parliamentary and public law work and has a special interest in administrative law, devolution and human rights. Christine has advised variety of clients on legislative procedure in the Scottish Parliament, particularly in relation to alcohol and tobacco regulation.
Christine O'Neill

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