Public Law

As we blogged earlier this month, there have been two recent protective expenses hearings in the Court of Session (both relating to planning issues). A third has come along to complete the trilogy, although this one is not a planning matter. Interestingly the parties to this case are two bodies which fall under the broad umbrella of organisations described as ‘local government’ – Hillhead Community Council (the appellants) and Glasgow City Council (the respondents).

The appellants brought an action against the respondents regarding a parking control order made by Glasgow City Council. The appellants argued that the respondents had not followed the statutory scheme laid down by Regulation 7 of the Local Authorities Traffic Orders (Procedure) Scotland Regulations 1999 for the consideration of objections to traffic orders. The respondents had, after receiving objections, required the objectors to confirm in writing whether their objections were to be maintained. The appellants contended that this was not provided for under the regulations.

The appellants also claimed that the respondents failed to have regard to the National Air Quality Strategy as provided for under section 122 of the Road Traffic Regulation Act 1984, as the parking control order would be likely to increase traffic flow in the Hillhead area and thereby increase air pollution.

The principles to be applied in considering whether a PEO should be granted were laid out by Lord Phillips MR in the case of R (Corner House Research) v The Secretary of State for Trade and Industry [2005] 1 WLR 2600. These were:

1) The issues raised are of general public importance;

2) The public interest requires that those issues should be resolved;

3) The applicant has no private interest in the outcome of the case;

4) Having regard to the financial resources of the applicant and the respondent and to the amount of costs there are likely to be involved, it is fair and just to make the order;

5) If the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.

The final ground for a PEO to be made is that the case must have a ‘real prospect of success’ – defined by Lord Drummond Young in Carroll, Petitioner [2014] CSIH 30 as “an arguable case; something that has more than a remote prospect of success”.

Counsel for the appellants argued that as the case involved the application of statutory rules by a public authority, the first and second criteria as set out by Lord Phillips MR in Corner House were satisfied. Hillhead Community Council’s position was that the issues were of local and general public interest. In relation to the fourth ground, counsel for the appellants stated that Hillhead Community Council had no resources to pay for the action, other than an ongoing fundraising effort. The respondents’ counsel sought to argue that the appeal had no real prospects of success and that the issues were purely local, and not of general public interest.

The court found in favour of the appellants and granted a PEO. Lord Bannatyne held that the appellants had real prospects of success, stating that there was at least an arguable case in favour of the appellants, and that the grounds of appeal dealt with points of general principle in which there was a public interest in favour of resolution. In relation to the ground of appeal regarding the proper construction of the Road Traffic Regulation Act 1984, there being no Scottish authority in this area and very limited English precedent, Lord Bannatyne clearly saw the case as a useful means to set forward clear judicial guidance.

On the financial grounds, the court was convinced by the appellants that their financial resources were not sufficient to continue with the case in the absence of a PEO, and limited their liability to the respondents in terms of cost to £1,000. The respondents’ liability to the appellants was limited to £15,000.

Unlike the John Muir Trust and Gibson cases referred to above, the key difference in this case appears to have been the resources of the appellants. In both the John Muir Trust and Gibson cases, the appellants had sufficient total assets to allow them to pursue the litigation in the absence of a PEO. In this case, the appellants would be forced to abandon their action if no PEO was granted. When combined with having a case to put that the court found arguable, this was sufficient to meet the threshold required for the court to grant an expenses order.

Douglas Waddell

Senior Solicitor at Brodies LLP
Douglas is a senior solicitor in Brodies Government, Regulation and Competition team. He has experience advising on a wide range of public law and commercial issues such as the powers and duties of local government, statutory interpretation, planning transactions, freedom of information and social housing litigation.
Douglas Waddell

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