Responses to its consultation on draft rules for protective expenses orders have been published by the Scottish Civil Justice Council.
The consultation concerned revised draft court rules for environmental proceedings seeking to give proper effect to the requirement, under the Aarhus Convention and European Union law, that proceedings should not be “prohibitively expensive” for concerned persons seeking to protect the environment.
The 15 respondents are sharply divided over whether the term "prohibitively expensive" should be defined, with some considering that there is sufficient guidance in the case law and flexibility is required while others argue for greater certainty. The Faculty of Advocates is among those taking the former view, while the Law Society of Scotland argues for the latter.
Respondents also differ over whether consideration should be given to prospects of success when applying the "prohibitively expensive" test, with some arguing that this is unnecessary given that permission must now be obtained to bring judicial review proceedings. Whether and to what extent an order should also cover appeal proceedings attracts a further range of views.