Scoop for new saveseilsound blog: Scottish Government announced Protective Expenses Orders this morning

The quick-eyed new saveseilsound blog has spotted a major political development slipped out by the Scottish Government but of enormous interest to those with a case to protest against a government decision affecting the environment.

Protective Expenses Orders [PEOs] may, as the blog says: ‘… seem a dry, lawyerly topic but they’re of fundamental importance to anyone concerned with environmental matters. Without protection against crippling awards of expenses it is impossible for individuals to challenge the insanities and illegalities of government departments.’

The example the blog uses to illustrate the importance of PEOs is that of  Ms Penny Uprichard, who was protesting against the scale of Fife Council’s proposed development west of St Andrews. She called it ‘a tsunami of development’.

Her case is ongoing at the Supreme Court.

A pensioner, Penny Uprichard took Fife Council and the Scottish Government to Judicial Review in 2010, contesting their decision on this matter. Her challenge was twice overturned by the Court of Session and she was faced with a legal bill of £173,000.

Ewan Kennedy, who is operating the saveseilsound blog and is himself a former lawyer, writes: ‘In principle the Scottish Government decided to introduce PEOs in cases to which the Aarhus Convention applies, basically those brought to court seeking purely to protect the environment rather than to vindicate private commercial interests. This brings Scotland into line with the Convention at long last.

‘Oddly the making of rules of court of such importance is delegated to the Court of Session Rules Committee, so the new rules had to wait until it met in January.

‘The outcome is a new Scottish Statutory Instrument (SSI) which has just been published and will come into effect on 25 March 2013.

‘Perhaps because of the secretive manner of its enactment the measure has not yet been noticed in the mainstream press, so you’re reading it here first.’ – a well deserved scoop for the alert and forensically accurate Mr Kennedy.

He says that the main points are:

  • ‘A PEO must be applied for at the start of proceedings.
  • ‘The applicant can be an individual or a “non-governmental organisation promoting environmental protection.”
  • ‘There will be a “presumptive limit” fixed at £5,000, that is to say it can be lowered on cause shown but not raised.
  • ‘Where a PEO is granted the respondent can seek a cross-cap limiting its liability if the petitioner succeeds. This will be fixed at £30,000.’

This matter is of significant current interest to saveseil sound who have very recently been considering a Judicial Review in one of the aquaculture issues they havebeen at the forefront of bringing to public and governemntal attention.

The saveseilsound blog is here and is always worth keeping up with.

The enablign of Protectoive expenses Order is a democratically important move. It is a pity that the governemnt has chosen to limit it to Aarhus Convention issues.

It is badly needed in the case of schools where, as happened in 2010-11, decisions demonstrably unsound in law were made on school closures by both local authorities and Education Ministers.

Council;s and the Scottish Govenrment can use other people’s money at will – and do – but a small parent council in a impoverished area are denied access to justice on financial incapability, even where their case is unanswerable, as Scottish Ministers’ determination of a case in Wick certainly was.

However, the precedent of the principle of Protectie Expenses Orders has now been set and it is up to campaigners to oush relentlessly for its extension into other necessary and non-commercial areas.

At the moment, a parent council hoping to find a lawyer willing to represent their case as a pro bono find few if any willing to do so – to do so because they hope for work from the government or the local authority and, in any case, do not wish to offend them in what, for them, seems an insignificant matter.

Even if a parent council were able to recruit a lawyer, should the Judicial Review opinion go against them, they would be faced with paying the expenses of the government or council side. And these guys hire the nost expensive counsel because they can – ironically on the back of the money of those to whom they persist in denying affordable access to law.

So the move today to introduce PEOs is to be unreservedly welcomed – but there is still work to be done to make justice available to the average citizen.

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2 Responses to Scoop for new saveseilsound blog: Scottish Government announced Protective Expenses Orders this morning

  1. Newsroom’s point in relation to schools is well made. To some extent it is not unreasonable that a community seeking to make a legal challenge should bear its own costs – the points to be made are usually straight forward, not of the tortuous legal nature we saw in the Western Isles case. What is not reasonable is that the council / government can intimidate the community out of having the law enforced by the threat of running up huge fees on its own account.
    The US system in such cases, and indeed the planning appeals system here are much fairer, each side pays its own fees. After all, if the community arguments are nonsense, the council isn’t obliged to respond beyond denying the claims.

    It is ironic that after months of argument, the Court of Session ruled that the Act did exactly what it “said on the tin”, despite counsel for both sides trying to make some very fanciful interpretations.

    The ruling showed just how extraordinarily misguided Angus Council’s abortive Judicial Review proceedings were, and how if the Government had properly applied the law in the case of Crossroads school in East Ayrshire, a huge amount of unnecessary distress, expense and political kerfuffle could have been avoided in Argyll and across Scotland.

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