Argyll News: Ewan Kennedy: affordable access to Judicial Review ...
This article follows one that lawyer and environmentalist, Ewan Kennedy, spoke on and wrote for us in January 2012, Legal issues for environmentalists.
Some of the issues he raised at that time have just received promise of redress, a situation Mr Kennedy here describes as:
Slightly better news for the environment
In the past week the Scottish Government (SG) has published its response to the consultation on cost-capping in environmental litigations via Protective Expenses Orders (PEOs), following the failure for many years on the part of the United Kingdom to implement its obligations under the Aarhus Convention.
The full government response can be accessed here online.
In summary, the proposals are as follows:-
- Scottish Government favours the introduction of PEOs in cases to which the Aarhus Convention applies, basically those brought to court seeking purely to protect the environment rather than to vindicate private commercial interests.
- A PEO must be applied for at the start of proceedings.
- The applicant can be an individual or a ?non-governmental organisation promoting environmental protection?.
- There will be a ?presumptive limit? fixed at ?5,000, that is to say it can be lowered on cause shown but not raised.
- Where a PEO is granted, the respondent can seek a cross-cap limiting its liability if the petitioner succeeds. This will be fixed at ?30,000.
Incredibly in a modern democracy the making of rules of court is left to the unelected Court of Session Rules Committee, which will meet next in January 2013 to discuss draft rules giving effect to the consultation response. However, the Scottish Government has expressed the hope that, in any cases arising in the meantime, judges will give effect to the principles by granting PEOs under their common law powers (although some senior judges have doubted that the court actually has power in this field).
With any luck this means that the injustice and uncertainty faced in the recent past by litigations such as Penny Uprichard and her legal bill of ?173,000 are now history.
The saveseilsound Campaign Group was one of seventeen environmental organisations that responded in detail. Our response can be accessed online here on the SG website.
Of these seventeen groups, saveseilsound was virtually alone in supporting a limit of ?5,000, as most other environmentalists suggested ?1,000 or a zero cap. Most public bodies wanted either a much higher cap or a discretionary cap involving a means test of the applicant. Disappointingly the latter was favoured by the Law Society of Scotland, despite being far short of what Aarhus requires.
I take responsibility for backing the figure of ?5,000. I have great respect for Lord Hope, one of the most senior Scottish judges, who had suggested this figure as a balance between affordability and the need to avoid frivolous litigations, but any figure will be arbitrary in a sense and unsatisfactory to some.
Saveseilsound argued against the cross-cap, as unnecessary for Aarhus compliance ? and we?ve lost that one.
On balance the result is good for the environment and those who care about protecting it. It is incredibly stressful to be in court, without having to face potential bankruptcy as well.
Allowing groups to litigate with the benefit of a PEO seems to make it unnecessary for one luckless individual to volunteer to be the petitioner. The complexities and checks inherent in court procedure will remain of course and it?s unlikely that the new rules will open any floodgates.
Ewan Kennedy
Editor?s Note: Here is a useful related article by Ewan Kennedy ? Legal Aid and Judicial Review, pubished here in March 2012.
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