39 - Scotland’s new protective expenses rules remain non-compliant with the Aarhus Convention

*With thanks to our guest author, Dr Ben Christman, legal director at the Environmental Rights Centre for Scotland, for providing this blog post.
This blog was first published in Scottish Legal News on 2 August 2024.*

The Scottish Civil Justice Council (SCJC) published an amendment to Scotland’s Protective Expenses Order (PEO) rules on 28 June 2024. This amendment followed repeated criticism of the cost of litigation over the environment by the Aarhus Convention Compliance Committee (ACCC). The amendment fails to deal with all of the problematic features of the PEO regime and is near-guaranteed to be subject to further ACCC criticism. This briefing evaluates the changes introduced in the latest amendment and asks what went wrong with the SCJC’s PEO review process.

Background – Scotland’s non-compliant PEO regime

The history of Scotland’s failure to comply with the access to justice requirements of the Aarhus Convention is long, and is summarised in the Environmental Rights Centre for Scotland’s (ERCS) briefing published in June 2024. Briefly stated, the Aarhus Convention Meeting of the Parties and the ACCC have repeatedly found that several aspects of the Scottish civil justice system are non-compliant. The UK has a 1 October 2024 deadline for resolving ongoing compliance issues with access to justice.

On 26 June 2024, the outstanding issues were summarised by the ACCC in their ‘First Progress Review’ of the UK’s (including Scotland’s) progress towards achieving compliance.

What are PEOs?

PEOs are the main mechanism which has been used in an attempt to make Scotland’s civil justice system compliant with the Aarhus Convention’s requirement that access to justice in environmental matters must be ‘not prohibitively expensive’.

PEOs are court orders which limit parties’ liability in expenses in certain types of environmental litigation. They are intended to address the imbalance of resources between parties in such cases (e.g. where an individual or a small environmental NGO sues the Scottish government).

The SCJC has amended the PEO rules three times. The SCJC’s 2015 and 2018 amendments to the PEO rules have both been found non-compliant.

The June 2024 PEO amendment

The June 2024 amendment changed the following features of the PEO regime:

• PEOs ‘carry over’ to proceedings in the Inner House of the Court of Session, regardless of which party is appealing the original decision. Previously, PEOs only carried over where the respondent (i.e. the public body being sued in a judicial review) appealed. If the petitioner appealed, they would have to reapply for a PEO for expenses protection during their appeal.
• A party applying for a PEO may request that all financial information provided to the Court as part of that application is made confidential and PEO hearings can be held in private.
• A default rule has been added so that expenses are not awarded for or against an ‘intervener’ (an intervener is a party in a judicial review case who is not directly affected by the case and makes a written submission to the court to assist its consideration of the case). However, there is provision to change this rule ‘on cause shown’.

Evaluation of the changes

These are broadly positive changes which address three of the problematic features of the PEO regime. Carrying over PEOs in appeals will reduce the need for additional PEO applications and hearings, and will reduce costs for litigants and increase their certainty around liability. Provision for confidentiality of sensitive financial information will alleviate concerns around the potential deterrent effects that disclosure of such information in open court might have. Clarity around interveners’ costs should increase certainty around expenses liability for litigants, although this will be limited by the risk of changes to interveners’ liability ‘on cause shown’.

While the changes are helpful vis-à-vis compliance, the PEO rules remain non-compliant because the SCJC failed to address the following problems:

• PEO applicants must provide information about the terms on which they are represented by their lawyers. The ACCC has explained that there is no obvious reason why this information should be required and that it, “…could require disclosure concerning pro bono representation and threaten the economic viability of environmental lawyers representing clients in public interest cases in the mid- to long-term”.
• PEO applicants must provide an estimate of the expenses of other parties. The ACCC has found that this entails additional cost, and has noted that, “neither England and Wales or Northern Ireland have such a requirement and it is difficult to see what value it adds, since the other party would surely be better placed to provide its own estimate”.
• The default PEO cap levels are that an applicant’s maximum liability to their opponent should be £5,000, with a reciprocal ‘cross-cap’ of £30,000. Both of these default levels are subject to the caveat, “or such other sum as may be justified on cause shown”. The ACCC has noted that the maximum amount payable by a PEO applicant should be £5,000, and that “the vague term “on cause shown” introduces legal uncertainty and could have a chilling effect”.
• The scope of the PEO rules remains limited to public law litigation in the Court of Session only – private nuisance claims in that Court and all other litigation in different fora are not covered.

What went wrong?

The Aarhus Convention aims to promote environmental democracy. It requires that public bodies are transparent, that information is accessible from and actively disseminated by public bodies, and that procedures are put in place to ensure that members of the public can participate in decision-making.

It is indicative of the Scottish legal system’s failure to embrace the spirit of the Convention that the process leading to the SCJC’s amendment was not transparent, and there was no opportunity for public participation.

ERCS first wrote to the SCJC in November 2021 to request that the SCJC commit to hold a public consultation to inform its review of the PEO rules. We were told by the SCJC that a public consultation would be held in late 2023. That position was subsequently reversed.

A public consultation would have brought more scrutiny and accountability to the SCJC, and would have forced the SCJC to confront the deficiencies of their proposals before finalising the amendments. Carrying out the review behind closed doors was contrary to the spirit and letter of the Aarhus Convention and has resulted in a predictably poor outcome.

When it was announced in 2021 that the SCJC was to be tasked with reviewing the PEO rules, ERCS expressed concerns to the Scottish government that the SCJC was not an appropriate body for this work given its history of writing non-compliant PEO rules. ERCS takes no pleasure in having these concerns confirmed.

The 1 October 2024 deadline for resolving ongoing access to justice non-compliance issues will not be met in respect of Scotland.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.