SCOTLAND'S leading lawyers have said anyone should be able to mount a legal challenge in public interest cases without being at risk of sequestration if they lose.
The Faculty of Advocates, made up of 700 of Scotland's lawyers, has called for a cap on legal costs for those challenging issues in the public interest.
The Scottish Government launched a consultation in January to see whether a cap should be applied to the legal costs a challenger would have to pay to the other side if they lose.
The usual rule in civil cases is the "loser pays", raising the risk a member of the public unable to pay large legal bills would be at risk of sequestration, the Scottish term for being bankruptcy.
Under the new proposals for environmental cases, there would be a cap of £5000. This is balanced by a proposal to introduce a similar cap – of £30,000 – on the defending party's liability to pay the challenger's legal costs.
It follows the case of Penny Uprichard from St Andrews, who was told last year at the Court of Session in Edinburgh she owed Scottish ministers £58,000 and Fife Council around £60,000 on top of her own expenses of £55,000 for legal fees.
These were incurred during her bid to overturn plans to build more than 1000 houses in her home town. She said St Andrews faced overwhelming development that would ruin its character.
In September, the Lord Justice Clerk, Lord Gill, found Miss Uprichard liable for substantial costs after rejecting her appeal against the ministers' decision in May 2009 to approve the Fife Structure Plan 2006-2026.
After losing her Court of Session appeal she went to the UK Supreme Court and made Scots legal history by being awarded a Protective Costs Order of £6000 – so she only needs to pay £3000 to each party if she loses.
Last month, she said: "I am advised by my lawyers that this is probably the first Protective Costs Order to be awarded by the Supreme Court for a Scottish case. In contrast, the first two PEOs (Protective Expenses Orders) to be agreed in Scotland were for £40,000 and £30,000."
The hearing will be in the Supreme Court in London next year.
She said the huge price of environmental litigation emphasises serious doubts many people have about democracy in the planning system.
The Faculty of Advocates has now responded to the Government consultation to say financial caps, or PEOs, should apply to all public interest cases.
Its response states that the scope of such a move should extend beyond areas covered by a European Commission directive, the Public Participation Directive.
It states: "The faculty recognises the consultation paper is directed/restricted to the discrete issue of the proposals to introduce Rules of Court of the Court of Session to regulate PEOs to judicial reviews and statutory reviews in the Court of Session of decisions falling within the scope of the Public Participation Directive (PPD).
"The faculty is of the view that the rationale for PEOs, and the regulation thereof, should not be limited to PPD cases and should apply to all public interest cases, and in particular all environmental cases.
"So, while the faculty is of the opinion ... a scheme for capping costs in challenges within the scope of the PPD should be introduced, the faculty respectfully suggests any new Rules of Court about PEOs apply to all public interest cases.
"The underlying rationale of the relevant provisions of the PPD and the Aarhus Convention [a convention on access to information, public participation in decision-making and access to justice in environmental matters] ... is the petitioner in an environmental case raising a serious issue of legality may, by bringing proceedings, advance not only his own interest but also an important public interest. The faculty is of the view this underlying rationale may also apply in other cases.
"There is a public interest involved in judicial review proceedings, whether or not private rights may also be affected" – namely, securing the rule of law. PEOs in non-environmental cases would serve the valuable purpose of ensuring that serious issues arising in such cases are properly tried.
"It would be consistent with the underling purpose of judicial review ... for such an order to be competent in any public interest case, subject to the relevant criteria being present."
The Government consultation closed last week.
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