The usual rule in civil cases is that the loser pays.
While that can provide a bulwark against vexatious litigation, it swings the balance of justice in favour of the wealthy. For an individual to challenge the decision of a public body, therefore, requires not only the courage of their convictions but a considerable sum of money.
The case of Penny Uprichard, a public-spirited citizen of St Andrews, provides the latest illustration of the difficulty. Ms Uprichard faced a bill of £118,000 for the legal costs of Scottish ministers and Fife Council in addition to her own expenses after twice failing in the Court of Session to challenge approval by ministers of the Fife structure plan. She is able to continue her challenge because she was awarded a Protective Costs Order, which means she will have to pay no more than £6000 if she loses the Supreme Court hearing next year.
Fourteen years ago in the Danish city of Aarhus, the UN Economic Commission for Europe agreed a convention that linked environmental rights with human rights. From this followed three distinct rights: to have access to information about the environment; to participate in environmental decision-making; and to have easy and effective access to justice if the former rights are denied.
Scotland was in the vanguard of the right to information with the Freedom of Information (Scotland) Act 2002 while the Environmental Assessment (Scotland) Act 2005 ensures participation in decision-making, although easy access to justice is not guaranteed. The practical remedy for that is a cap on costs and the Scottish Government's consultation on that matter, which closed earlier this month, proposes that, in cases covered by the EC directive resulting from Aarhus, the challenger should not have to pay more than £5000 and the liability of a public body should be limited to £30,000.
The Faculty of Advocates agrees with these limits on liability but wants the principle to be extended beyond environmental cases to all those where there is an element of public interest. That is a welcome acceptance of the need to ensure the decisions of all public bodies are open to challenge, particularly at a time when services are increasingly outsourced and processes (such as the planning system) are streamlined.
Nevertheless, a cap of £5000, while a significant lowering of costs, will remain prohibitive for many individuals and there is a case, as environmental groups argue, for lowering the limit.
As the dangers of pollution to human health, wildlife habitat and climate change have become increasingly clear, the need for environmental justice is undeniable.
It is in all our interests to ensure that the ordinary citizen is able to go to court to defend a healthy and unsullied environment.
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