Individuals who raise court actions in Scotland focused on environmental issues such as roads, energy developments and land use are to have any award of legal costs against them capped.  This follows the introduction of new court rules dealing with Protected Expenses Orders (PEOs).  The intention of the new rules - which apply only to cases raised after 10 December 2018 - is to make access to the courts in complex and often lengthy cases less prohibitively expensive.  

The PEO is the mechanism a party can use to limit their liability in legal expenses.  The principle that bringing an action to court should not be 'prohibitively expensive' is enshrined in EU law through the Aarhus Convention. The Convention provides that signatory states are to ensure access to justice for the public and establish procedures for doing so which shall 'provide adequate and effective remedies... and be fair, equitable, timely and not prohibitively expensive'.  

PEOs and the 2018 court rules

The 2018 rules – which amend a set of existing rules – cover a range of issues, including

  • Giving a new definition of when court proceedings are to be considered 'prohibitively expensive' for the applicant seeking protection.  The applicant's financial means will be taken into account, as will other factors pointing to the reasonableness of the likely costs.
  • In considering the reasonableness of the costs, factors taken into account will include the importance of what is at stake to the applicant and to the environment, the legal and procedural complexity, and the situation of the parties.
  • Setting out who can make an application and give the timescales for making one.  They also state circumstances in which the court must make a PEO.  These are different depending on the nature of the proceedings. 
  • Setting out that the common feature for all types of court cases is that if the proceedings are prohibitively expensive to the applicant, the court must make a PEO.
  • Allowing for the alteration of the limits on liability in expenses to be lifted, raised or lowered on cause shown.  Although there is a limit of £30,000 on the liability in expenses for the applicant, this can be modified by the court.  It is possible for an applicant to ask for a higher (or lower) amount to be sanctioned.

Other changes which give increased certainty in terms of procedure, including how to object to an application for a PEO, are covered in the rules.  A party wishing to object must lodge a notice of opposition with the court with documentation to support their opposition.

It's possible these changes could lead to court actions which might not otherwise have taken place. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.