The Scottish Civil Justice Council has today issued a public consultation on proposals that would allow a party to request costs protection against an adverse award of expenses in a sheriff court environmental action.

Normally when someone loses a civil court case they would have to pay the “reasonable expenses” incurred by their opponent in addition to the amount they have been charged by their own lawyers.  In an environmental case the court may, in the interests of justice, agree to grant an Environmental PEO to limit financial risk for that party. In practice that normally means the maximum that party would have to pay their opponent would be capped at £5,000 if they were to lose their case.

A decision by the court to grant such an order can be contentious as it limits the expenses that would otherwise have been paid to the successful party. Under the existing procedure those orders can only be sought in ‘judicial review’ proceedings and ‘statutory appeals’ within the Court of Session.  The main proposal made within this consultation is to extend the ability to seek such orders: to a range of other civil actions that can be initiated within the sheriff courts; along with any potential challenge of that courts decisions to the Sheriff Appeal Court.

The Council welcomes feedback from any individuals or organisations with an interest in protecting the environment and in particular those who are contemplating whether to initiate environmental litigation in the public interest, and those who are (or have previously been) involved as a party in an environmental case where a motion for costs protection was considered by the court.

Notes to editors

1. The consultation paper, draft rules and accompanying impact assessments can be viewed via the consultation page of the Councils website:

https://www.scottishciviljusticecouncil.gov.uk/consultations/scjc-consultations

2. This consultation will be open for 12 weeks. The closing date for responses is 14 November 2025.

3. The content of this consultation will be of assistance to the Aarhus Convention Compliance Committee (ACCC) in their role of monitoring compliance with the Aarhus Convention.