New rules to prevent court actions relating to the environment being "prohibitively expensive" to members of the public have been made by the Court of Session.

They follow a review by the Scottish Civil Justice Council, following a request from the Scottish Government, of the test for granting a protective expenses order (PEO), which limits the amount those bringing environment-related proceedings may be liable to pay the other side if they lose, and the procedure by which applications are determined.

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.

Contained in the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Protective Expenses Orders) 2018, the rules provide a new procedural model for PEO applications and substitute a new chapter 58A of the Rules of the Court of Session 1994. The rules:

  • 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 will apply to proceedings commenced after 10 December 2018.

Click here to view the Act of Sederunt.