Draft protective expenses rules out to consultation

Court rules aimed at preventing environmental litigation being prohibitively expensive to members of the public have been published in draft for consultation by the Scottish Civil Justice Council.

The rules relate to protective expenses orders (PEOs), which attempt to give the public wide access to justice so that it can play an active role in the preservation, protection and improvement of the environment. 

Under the Aarhus Convention and European Union law, such proceedings should be "not prohibitively expensive".

Rules were first put in place in the Court of Session in 2013, and amended last year following suggestions form the Scottish Government, but after undertaking a further review, focusing on the prescribed test and the procedure by which applications are determined, the SCJC believes the rules may still not fully comply with the Convention, having regard to decisions of the EU Court of Justice and the UK Supreme Court.

The present caps of £5,000 on the applicant’s liability in expenses to the respondent, and of £30,000 on the respondent’s liability in expenses to the applicant, would remain, with power in the court to vary these limits on cause shown.

Click here to access the consultation. Responses are due by 23 June 2017.