Response to Consultation

About the current consultation

This consultation is seriously overdue, as by the time it reports it will be seven years since the United Kingdom Government ratified the Aarhus Convention, granting the rights of access to environmental justice which it describes.

Recent litigations in the Court of Session (for example the Walton, McGinty and Uprichard cases) have left environmental litigants and their supporters feeling very sore and angry at treatment that on the face of it seems to have flown in the face of the Convention. While the cases foundered mainly on the rocks of the complex and restrictive Scottish rules on title and interest, themselves manifestly in breach of the Convention, the rulings on expenses have perhaps betrayed an enthusiasm on the part of our judges to punish those they feel to be “mere busybodies”. There seem to be two underlying strands, first a feeling that environmental issues are in some way not the “real” problems that courts exist to handle and second a subconscious Scottish juridical chauvinism.

Rules of procedure are every bit as important as those of substantive law, as there is no point in conferring rights on people if they are procedurally impossible to vindicate. Justice is denied when access to court is made unaffordable.

As the consultation document states (para 5) the consultation deals with only one aspect, litigation expenses, and we hope that further consultations will follow, once the recommendations in Lord Gill’s Scottish Civil Courts Review have been digested (para 28).

It is an unfortunate feature of the Scottish legal system that rules of delegated legislation in this important area are made by the entirely unelected Court of Session Rules Committee, which it seems had already been toiling with the implications of Aarhus for at least a year, with no publicity for its work, before the Scottish Government decided upon this consultation. We trust that once the consultation is completed there will be further opportunity for public debate before new rules are enacted.
 

Questions
Q1. In your opinion should there be a scheme for the capping of costs in legal challenges to public authorities’ decisions within the scope of the PPD?

    Answer: Yes

Q2. If a scheme is introduced, should there be a presumptive limit?

    Answer: Yes, there should be a limit, but an absolute one.

Q3. Should the limit be set at £5,000?

Answer: Yes

Comment: Any limit will in a sense be arbitrary, but there is logic in the remarks of Lord Hope, who considered that the average litigant, perhaps on a net income of £25,000 would be prepared to risk funds of up to £5,000 to establish a point of public rather than private importance.


Q4. Should the figure be higher or lower than £5,000?

    Answer: See answer to Question 3, above.

Q5. Should the amount be left to the Court’s discretion?

    Answer: No

Comment: The reported cases to date, such as Walton and McGinty, show that allowing a discretion results in illogical and unreasoned decisions, producing uncertainty. In McGinty the pursuer had no assets at all. Lady Dorrian having given reasons why an order was appropriate failed to give any reasons for fixing the PEO at £30,000. One can speculate that she was influenced by the knowledge that others were standing behind him.

Q6. Should challenges to the limit be allowed?

    Answer: No

Comment: We are aware, from the available minutes of the Rules Committee that in responding to comments received from the European Commission they were prepared to accept a limit of £25,000 but considered that, inter alia (a) it would apply to individuals only – so campaign groups would face unlimited liability (b) the rule would apply separately to each individual – so that the assets of joint pursuers would be cumulatively assessed (c) the court would look at the means of the individuals and (d) account would be taken of third party funding. A very similar set of requirements is suggested in the Gill Review at para 75, reformulating the Corner House rules.

This is all contrary to the spirit of the Convention, which draws no distinction between individuals and campaign groups and speaks of “members of the public”, which is after all what single individuals and groups, alike, are.

Environmental litigants are almost never acting alone. Instead they form campaign groups, typically comprising a central core of activists and a much larger crowd of more or less enthusiastic followers. Imposing a subjective test seems to mean that if they were to litigate as a group the resources of all would require to be cumulatively assessed, with obvious results. On the other hand for them to select a particularly impoverished one of their number to carry the banner seems dishonest, indecent and imprudent. It is dishonest because it obscures the true nature of the case and presents it as an individual, not a community, issue, indecent because it encroaches on the dignity and privacy of the person selected and imprudent because that person is then solely and totally in charge of the case and can, for example, call a halt if the stress becomes too much. This is borne out by the recent cases referred to in our opening comments.

Q7. Should it be possible to raise the level, if challenged?

    Answer: No

Q8. If considering challenges to the presumptive limit, should the court be restricted to considering financial information which is already in the public domain?

Answer: N/A

Comment: We assume that this question envisages major charities litigating, as for example did the RSPB in their successful challenge to the issuing of licences to shoot geese on Islay. We do not consider there to be any reason of principle why such bodies should be placed in a different position from the rest of the public, and possibly deterred from litigating as a result.

Q9. Should challenges only be allowed against organisations or should
challenges also be allowed against wealthy individuals?

    Answer: N/A

Comment: The above comment applies with equal force to wealthy individuals. It is interesting that no such person has actually featured as a pursuer in any of the recently reported cases, but they should not be deterred from becoming involved.

Q10. Should a party who unsuccessfully challenges a PEO be liable for costs sanctions?

    Answer: N/A

Q11. If introduced, what should these sanctions be?

    Answer: N/A

Q12. Should there be an automatic cross-cap?

    Answer: No

Comment: The whole purpose of the new rule is to comply with the Convention by ensuring that access to justice is inter alia not prohibitively expensive, so that parties are not prevented from raising environmental issues. The Convention does not state that the defender should be entitled to have its costs limited if the challenge against it is successful, so equivalence is not implied.

Further, it will never be the case that a public body defender decides not to litigate solely out of fear of an adverse award of expenses.

It is not suggested that, except for changes to make them convention-compliant, the new rules would change the existing rules about expenses, which confer considerable discretion on the trial court. Judges can and do limit awards where it is obvious that a litigant has been profligate.

Questions 13 to 19 inclusive: We do not answer these questions, for reasons which will be clear from the foregoing comments.

Question 20  Should the proposed rules apply to appeals?

Answer: Yes

Comment: It would defeat the spirit of the Convention for the protection afforded to an environmental litigant to fly off at appeal level.

Q21. If the proposed rules are to apply to appeals, how should PEOs be
treated?

Answer: The original cap would simply remain.

Q22. In appeal proceedings, should a higher presumptive limit be set?

    Answer: No

Q23. Should the court have discretion as to the limit of a PEO on appeal?

    Answer: No

Q24. If a presumptive limit should be set, what amount do you consider would be appropriate?

    Answer: N/A

Q25. Would (in a case within the scope of the PPD) the proposed rules on PEOs enable you to bring a judicial review, or statutory review, in the Court of Session?

    Answer: Yes

Q26. How many cases would you expect to bring?

    Answer: As an ad hoc campaign group we are aware of a very small number of issues that could potentially lead to litigation. Realistically it is unlikely that any of these will materialise


Q27. Are you aware of specific instances where a party has been deterred from bringing a case within the scope of PPD due to concerns over potential liability for adverse costs? If so please provide specific details including the matter you wished to challenge.

    Answer: No

Comment: Given the reported cases we have referred to it is obvious that any competent advisor would advise against litigation in the absence of the proposed new rules.
 
Q28. Do you have any other comments on the proposals outlined in this
paper?

    Answer: No

About the saveseilsound Campaign Group

The saveseilsound Campaign Group was formed in early 2011 in response to an application by Lakeland Marine Farm Limited for planning consent to expand its operations in the waters of Seil, Shuna and Melfort by massively increasing the permitted biomass at two of its sites. Local residents and business operators alike were horrified at the scale and location of this and started to register objections, which to date number about eight hundred. A nucleus of the objectors decided to form a campaign group to focus on this issue. Like virtually all campaign groups in Scotland we are unincorporated and do not have a formal constitution. Our members include not only concerned lay people but also a number with experience and qualifications in natural science and marine biology. We have established sources of advice from supportive experts in various special areas. We are entirely funded from our members’ private resources.
 
It will be seen that our area of concern is entirely within Annex A II section 1 (f).

Further information can be obtained via our website, www.saveseilsound.org.uk