Protective expenses orders in environmental cases
24 February 2014
In July 2013 Lord Drummond Young granted the first protective expenses order (“PEO”) under new provisions in the Rules of the Court of Session (RCS 58A). His reasons for doing so are now available in Sally Carroll v Scottish Borders Council  CSIH 30. (The substantive decision of Lord Armstrong in Sally Carroll v Scottish Borders Council  CSOH 6 was issued prior to Lord Drummond Young’s reasons for granting the PEO, and is currently being reclaimed).
Carroll concerns an environmental challenge to the grant of planning permission for two 110m wind turbines. The UK has recently been found in breach of EU law because it is so expensive for individuals to bring legal proceedings to challenge environmental decisions. The European Commission brought enforcement proceedings against the UK for its failure to transpose obligations under Directives implementing the Aarhus Convention (Case C-530/11 Commission v UK). One of the requirements of Aarhus is that legal proceedings to challenge environmental decisions should not be prohibitively expensive. The environment cannot stand up for itself, so individuals are not to be prevented from taking action to protect the environment by reason of the financial burden that might arise as a result. The CJEU found that the UK had failed properly to transpose the requirement that judicial proceedings should not be prohibitively expensive on 13 February 2014.
RCS 58A was part of the UK’s response to the Commission’s decision to bring enforcement action, and was introduced following a Scottish Government consultation. RCS 58A aims to address the requirement that proceedings should not be prohibitively expensive, by making provision for the court to grant PEOs. These limit liability to other parties in expenses to £5000 if an appellant is unsuccessful in environmental cases falling within specified Directives. The fixing of liability for expenses in this way removes one major disincentive to bringing proceedings, because the appellant has more certainty in advance what their maximum exposure in costs will be. If the appellant does not succeed, they will be liable for their own legal expenses, the court fees (which may be substantial following 2013 increases), and £5,000 towards other parties’ expenses.
Lord Drummond Young’s decision finds that RCS 58A requires to be interpreted in accordance with the requirements of EU law. It sets out guidance for the making of applications for PEOs under RCS 58A.
Anna Poole QC of Axiom Advocates acts for Sally Carroll.
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