Comment posted on Faculty of Advocates calls for cap on legal costs on ALL public interest issues by Ewan Kennedy
It’s welcome that the Faculty of Advocates has gone wider in its recommendations, although we will be told that extending PEOs into other contexts is beyond the current remit.
It’s worth noting that the present consultation into environmental litigations is only taking place because the European Commission finally ran out of patience with the authorities in both Scotland and England failing to respond to the very clear obligations undertaken by the UK Government on their behalf under the Aarhus Convention. The Scottish Government’s review into the civil courts under Lord Gill’s Review had looked at this and came out with a report which blatantly didn’t satisfy the Aarhus requirements and also for good measure took the view that granting PEOs might be incompetent in any case. This was followed by the unelected and secretive Supreme Courts Rules Committee producing totally non-Aarhus compliant drafts for a year or so and having them rejected by the Commission.
A second review under Sheriff Principal James Taylor has just closed and it will be interesting to see the report in due course.
In the meantime the position seems to be that thanks to Miss Uprichard we know that PEOs are indeed competent. They have not been restricted to environmental cases in any event, the original decision by Lord Glennie that opened the door to them being concerned with Hepatitis sufferers. This should give some hope and encouragement to the parents in Wick and elsewhere.
Recent comments by Ewan Kennedy
- saveseilsound’s new blog gives Jamie McGrigor the facts on Scottish Salmon Company ownership
There’s an article mentioning Mr Lopatinsky here:http://www.scotsman.com/the-scotsman/business/interview-stewart-mclelland-chief-executive-of-the-scottish-salmon-company-1-2140434
He’s about 41 years of age and brought up in the United States, where he attended Cornell University. There are suggestions that his fund owns parts of Charlotte Square, possibly including Bute House.
As Roc Sandford suggests he’ll no doubt be delighted to clarify all these matters himself.
- Scottish Government gives Raasay crofters a consultation on shooting rights
This is staggering incompetence by someone and it’s fascinating that the Environment Minister blames the civil servants. One is left wondering what exactly Ministers actually do, if they don’t make decisions. There’s a full analysis of the legal background and the issues by Andy Wightman accessible here:- http://www.andywightman.com/Towards the end of last year Mr Wheelhouse “decided” not to call in the very suspect decision by SEPA to grant a licence for pollutants to be dumped in Seil Sound at Ardmaddy South. It is likely that the decision will be subject to judicial review and it will be interesting to find out if civil servants are to be blamed for this as well, when matters come out in court.
- School closures: fascinating Court of Session opinion on Scottish Ministers’ appeal against judgment in favour of Western Isles Council
This is an extremely important and interesting decision, also commendably short. The Ministers were in the strange position of arguing that their powers were constrained whereas the Council argued they could look at the merits. But the Council failed in challenging the decision to call in. Effectively this means that the Ministers have more powers than they thought they had and the decisions will now need to be taken by them, after considering the issues rather than just the procedure. - Phew. It’s not illegal to put up a dummy for election as a councillor
Almost right, Jim B. There’s a good analysis on the Lallandspeatworrier’s blog. Much worse than a typo, the dummy in the Procurator Fiscal’s office used the wrong section of the Act. It’s basic stuff for lawyers to get this sort of thing right and in the private sector he/she wouldn’t have any clients after this.Ms Torry would have been economical on expenses
though. - Ewan Kennedy: affordable access to Judicial Review on horizon for environmental decisions
No. That will never happen in any circumstances.
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There is a much wider issue here which relegates the Faculty’s support to tinkering.
Access to justice is just as important for the individual as any community interest. Justice should not discriminate between individuals or communities.
Unless your costs are met by the public there are no winners in legal proceedings except the lawyers. Even if you are successful you will have to met about a third of your legal costs.
Defending or pursuing a civil or administrative tribunal case is a lottery prostituted by an insurance industry not concerned with justice but brinksmanship and reducing risk and compensation.
This along with ridiculous delays in the court process and unjustifiable legal fees strikes at the integrity of Scots law.
The time has come to consider a national legal service which provides a system where justice is the outcome unadulterated by insurance risk and cost
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A national legal service would require a society prepared to pay Swedish levels of income tax, wouldn’t it? Are we there yet?
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It’s welcome that the Faculty of Advocates has gone wider in its recommendations, although we will be told that extending PEOs into other contexts is beyond the current remit.
It’s worth noting that the present consultation into environmental litigations is only taking place because the European Commission finally ran out of patience with the authorities in both Scotland and England failing to respond to the very clear obligations undertaken by the UK Government on their behalf under the Aarhus Convention. The Scottish Government’s review into the civil courts under Lord Gill’s Review had looked at this and came out with a report which blatantly didn’t satisfy the Aarhus requirements and also for good measure took the view that granting PEOs might be incompetent in any case. This was followed by the unelected and secretive Supreme Courts Rules Committee producing totally non-Aarhus compliant drafts for a year or so and having them rejected by the Commission.
A second review under Sheriff Principal James Taylor has just closed and it will be interesting to see the report in due course.
In the meantime the position seems to be that thanks to Miss Uprichard we know that PEOs are indeed competent. They have not been restricted to environmental cases in any event, the original decision by Lord Glennie that opened the door to them being concerned with Hepatitis sufferers. This should give some hope and encouragement to the parents in Wick and elsewhere.
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While one might observe that a country’s quality of life is more important than the level of tax charged it is not necessary to have a national legal service at extortionate cost.
the funds spent by both the public purse and private insurance in legal protection and the myriad of quasi judicial schemes are enormous.
Most legal disputes can be resolved by simply applying legal principle. Regrettably that principle has been clouded by artificial procedural devices where the cost of pursuing cases outweighs the value of the sums sued in most cases.
This sorry state of affairs does our legal system no favours as it means that cases which should be tested in the courts are settled before a court judgement . Our law cannot develop without the principles of our law being applied to 21st century disputes
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