A man seeking declarator that the Scottish Parliament can legislate for a referendum on Scottish independence without the consent of Westminster, has failed to obtain a protective expenses order (PEO) in the Court of Session.

Martin Keatings, who has raised the action against the Advocate General as representing the UK Government, along with the Lord Advocate and the Scottish Ministers, moved for a PEO at common law since his case did not come within chapter 58A of the Court of Session Rules. He argued that he met the criteria in Newton Mearns Residents Flood Prevention Group v East Renfrewshire Council (2013). The Advocate General opposed the motion.

Lady Poole, in the Outer House, found that the case had real prospects of success, which was not intended as a high test to pass. 

Turning to the Newton Mearns criteria, she was satisfied that the case raised an issue of general public importance – but not that the public interest required the issue to be resolved in these proceedings.

"It is relevant to notice the mechanisms contained in ss 31-33 of the [Scotland Act 1998]", she said. "These provide for pre-enactment scrutiny of bills in the Scottish Parliament, including references to a court (the Judicial Committee), to ensure that they are within legislative competence. If and when a bill for an independence referendum is introduced, those statutory processes are available to resolve the issue of general public importance raised in this case. Parliament has thereby provided a pre-enactment means of resolution. Judicial review is available to resolve issues of legislative competence after enactment.

"Further, these particular proceedings are not an appropriate way to resolve the underlying issue. The court is being asked in this action to construe the limits of the legislative power of the Scottish Parliament." This was a matter governed principally by the 1998 Act, which focused on enactments. 

"Currently there is no existing provision or Act to which the court can meaningfully apply the legal tests which define the limits of the legislative competence of the Scottish Parliament. Nor is one imminent... It remains uncertain when and whether in the future there will be any vote on any such legislation."

She added: "The finding I have made does not prevent the pursuer carrying on with these proceedings if he chooses."

Lady Poole further considered that the test of having a private interest in the outcome should be considered in the financial sense, and that the pursuer had an indirect financial interest because of the crowdfunding currently being used to fund his action, if he were then to receive an award of expenses from the defenders. The form of the PEO could have been modified to avoid this, but the criterion was not met in the form in which the application was made.

On the next test, whether it was fair and just to make the order having regard to the pursuer's and defenders' financial resources, Lady Poole considered the likely expenses should be assessed at £65,000 per party including VAT (the pursuer had argued for nearly £140,000; the first defender argued that the legal aid rate of £25,446 should be taken into account). The total of £195,000 was a high figure even with access to money from crowdfunding; and while a high cap would have been applied, it was "not objectively reasonable for the pursuer potentially to be liable for a sum quite as high as that in legal expenses".

However she was not satisfied that the action would be discontinued if the order was not made, due to the money raised by crowdfunding.

The pursuer having met only two of the five tests, she was not satisfied that it was fair and just to grant the PEO.

Click here to view Lady Poole's opinion.