In September and October 2024 the Council published two research papers to provide information relating to 28 cases raised in the Court of Session where a motion for a Protective Expenses Order (PEO) had been considered. 

The first of those reports provided “Research on the cost caps used in practice” and the second covered “Research on the type of cases seeking a Protective Expensive Order”.  Today the Council has published a third report covering “Research on the incidence of interveners” in order to counter the perception that someone who has been granted a PEO might be at risk of paying interveners expenses.

In the 12 cases where a Common law PEO had been sought: leave for a written submission to be made by a “public interest intervener” has only been granted once; and it was the written judgment in that case that first established the courts default position whereby “expenses would not normally be paid ‘to or by’ an intervener”. 

In the 16 cases where an Environmental PEO had been sought: this research has confirmed that no applications for leave to intervene were made so the question of an intervener being awarded expenses did not arise in any of those cases.

Notes for Editors 

1. PEO is an acronym for Protective Expenses Order. 

2. All three research papers can be viewed online via the publications page of the SCJC website:

 https://www.scottishciviljusticecouncil.gov.uk/publications/scjc-and-other-organisations'-publications 

3. All three research reports will be of interest to the Aarhus Convention Compliance Committee (ACCC) in their role of monitoring compliance with the Aarhus Convention and suggesting improvements. That committee had requested relevant data to clarify what does happen in practice regarding several of the concerns they had raised within their 2021 compliance report.