New rules on protective expenses orders in environmental proceedings

Nov 27, 2018

New rules have been published which aim to enhance access to justice by preventing court actions relating to the environment being “prohibitively expensive” to members of the public.

Following a request from the Scottish Government, in September 2015 the Scottish Civil Justice Council (the Council) approved changes to the Rules of the Court of Session in relation to Protective Expenses Orders (PEOs), a mechanism by which a party can seek to limit their liability for legal costs. 

Since then, the Council has undertaken a review of these rules, focusing on the prescribed test and the procedure by which applications are determined. The Council developed the new rules and consulted on the proposed changes in March 2017. 

The Aarhus Convention and European Union Law require that court proceedings should not be "prohibitively expensive". The new rules seek to ensure that the provisions regulating applications for PEOs in environmental proceedings operate effectively for this requirement. 

The new rules, contained within Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Protective Expenses Orders) 2018:

  • provide a new procedural model for PEO applications and substitute a new Chapter 58A of the Rules of the Court of Session 1994;
  • provide a new process for determination of applications including lodging opposition to applications;
  • make a related amendment to the provisions for granting PEOs in certain proceedings relating to the environment;
  •  provide a new definition of when related proceedings are to be considered as “prohibitively expensive” to the applicant seeking protection and provisions and timescales for making applications in various circumstances;
  • provide limits on liability for expenses and for them to be lifted or lowered on cause shown, and make provision for circumstances whereby liability for expenses is limited to £500. 

The amendments made by this Act of Sederunt will apply to proceedings commenced after 10 December 2018. 

Background information 

Under the Aarhus Convention and European Union law, proceedings relating to the environment should be "not prohibitively expensive". 

In September 2015, the Council considered a request from the Scottish Government proposing changes to the Rules of the Court of Session in relation to PEOs, which was approved and in 2016 the rules in Chapter 58A were substantially amended. 

The amendments were concerned only with the scope of the rules, the purpose being to ensure that the criteria imposed by the rules, in so far as relating to the type of proceedings in which an application could be made, and the applicant’s interest. 

Following a further review of the rules by the Council, focusing on the prescribed test, and the procedure by which applications are determined, revised draft rules were instructed and a consultation was launched. 

Thereafter, a small working group was established to consider the responses and policy issues raised with a view to making recommendations to the Council. 

Further to the Council’s consideration of the recommendations at its July 2018 meeting, the amended draft rules were approved and the rules have been made.

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