Part 1 – Overhaul of judicial expenses

In this first part of a two-part blog series, we outline what the key expenses of environmental judicial reviews are and what changes must be implemented now to bring Scotland’s legal system into compliance with the international human rights and environmental law known as the ‘Aarhus Convention’. Part two will examine the merits of an environmental court or tribunal for Scotland.

Introduction

Last month the Aarhus Convention Compliance Committee (‘the ACCC’) found that Scotland’s legal system is not compliant with the Aarhus Convention. It called for law reform ‘as a matter of urgency’, with ‘a plan of action’ to be submitted to it by 2022.

The Aarhus Convention requires that Scotland’s legal system allow the public to challenge breaches of environmental laws and decisions before a court or independent body in a way that is fair, affordable, and accessible. This concept of access to justice is crucial to our democracy. It forms part of our procedural human right to a healthy environment. But in Scotland, an individual bringing a case can expect to pay tens or hundreds of thousands of pounds in expenses – whether they win or lose.

The status quo is the opposite of what the human right of access to justice should look like. At a time when we are exceeding our planetary limits, the need for a legal system which enables the public to stand up for the environment, is more pressing than ever. It is crucial that access to justice is realised as a human right that extends to everybody.

The Aarhus Convention’s governing institutions first found that going to court in Scotland was prohibitively expensive back in 2014. The good news is that the Scottish Government is now showing signs of shoring up its ambition on human and environmental rights. It has committed to introducing a Human Rights Bill at Holyrood during this Parliamentary session, which will include the right to a healthy environment for everyone. This includes provisions of the Aarhus Convention. That being the case, passing legislation alone won’t fix the problems with Scotland’s legal system; it is vital that the Government acts on the numerous findings of the ACCC now and does not allow the new process of bill writing to stall the overdue need for reform. The Scottish Government’s long-held position that it is compliant with the Convention is untenable.

The Environmental Rights Centre for Scotland believes that alongside incorporating the provisions of the Aarhus Convention in a Human Rights Bill, two key interventions are urgently required. The Scottish Government must:

• Review and overhaul judicial expenses, looking at all the key sources to the individual raising the proceedings, and legislating to reduce or remove them
• Set up a specialist environmental court or tribunal. In addition to being low-cost and accessible, hearing environmental cases in one place would facilitate judges to develop expertise in interpreting environmental law. 

In this first part of this two-part blog series, we look at the first of these interventions:  judicial expenses in relation to environmental litigation.

Expenses in Scotland

The main way of challenging breaches of environmental laws by public bodies is by raising judicial review proceedings in the Court of Session, which can be very expensive, whether the individual raising the judicial review (the ‘petitioner’) loses or wins the case.

Potential expenses to the petitioner come from three key sources:

(1) The petitioner’s legal team

(2) The respondent’s expenses (and those of third-party interveners)

(3) Court fees

There are some mechanisms in place which should help petitioners with these expenses, but they are not working in practice.

ERCS believes that reforms must be urgently considered. This position supports that of Friends of the Earth Scotland and the RSPB who have been making this case to the Scottish Parliament and the ACCC for many years now.

1.     The petitioner’s legal team

The petitioner must pay their own legal team if they lose. The legal team usually consists of both counsel (advocates or solicitor advocates) and solicitors. These expenses alone can typically range from £20,000 to £100,000, depending on the complexity of the case, the willingness of lawyers to limit their fees, and whether the case goes to appeal.

Means-tested legal aid is available to help people with the costs of legal advice or representation in the courts. However, even if an individual is eligible for legal aid, it is extremely unlikely that it will be granted for environmental cases. This is because Regulation 15 Civil Legal Aid (Scotland) Regulations 2002 places limitations on a person making an application for legal aid when there may be another person who has a joint interest in the matter. Most environmental cases, by their nature, typically raise issues of broad public concern. This is called public interest litigation. Furthermore, civil legal aid is available only to ‘persons’. This rule makes environmental NGOs and incorporated or unincorporated community groups ineligible.

The Scottish Government consulted on legal aid reform in 2019 and aims to introduce a Bill in the first session of the next Parliament. The ACCC has asked to be provided with the text of the relevant legislative provisions at any early stage for its consideration.

ERCS’s position is that legal aid should be available for environmental public interest litigation, including for  civil society organisations (e.g. community groups and NGOs)

2.     The respondent’s expenses (and those of third-party interveners)

If the petitioner loses the case, they must pay the expenses of the opposing side (the ‘respondent’). There may also be liability for the expenses of any intervening third parties – such as developers. Commonly known as the ‘loser pays’ rule, these expenses can be exorbitant. The John Muir Trust’s unsuccessful attempt to challenge a windfarm development led to it facing a £539,000 bill to the Scottish Government and the energy company SSE in 2017, albeit this was eventually negotiated down to £125,000.

Protective Expenses Orders (‘PEOs’) are the help that is available to protect the petitioner from paying the respondent’s expenses. They are an Order, given by a judge, that the petitioner will only have to pay up to a certain amount (a ‘cap’).Under the current PEO rules, a petitioner can apply for a PEO at the start of their case, and the cap is set at £5,000. However, there are several problems with this cap First, the PEO is not guaranteed: the respondent can oppose the application for a PEO, and/or the judge may decide not to grant the PEO. Second, the amount of £5,000 may be raised or lowered ‘on cause shown.’ Finally, £5,000 is itself prohibitively expensive for prospective petitioners.

What makes PEOs even worse for access to justice is that in the situation where the petitioner successfully obtains a PEO and wins their case, a ‘cross-cap’ of £30,000 applies. This means the petitioner can only recover up to £30,000 from the respondent. There are two main problems with this. First, as with the £5,000 cap, this amount may be raised or lowered ‘on cause shown’. But crucially, the cross-cap means the petitioner must pay all the expenses of their legal team that go above £30,000 – which may be tens of thousands of pounds.  The cross-cap therefore puts the petitioner in a lose-lose situation: if they go to judicial review they can expect to pay tens, if not hundreds of thousands of pounds whether they win or lose, even having secured a PEO.

The ACCC identified several other problems relating to the PEO regime. For more information, see our information sheet on Access to justice on the environment, and whether Scotland is providing it.

It is clear that the PEO regime needs to be entirely overhauled. Qualified one-way costs shifting (QOCS) have recently been introduced for personal injury claims in Scotland and this could be introduced for environmental cases.

Under QOCS, the general rule is that a petitioner is not liable for the expenses of any other parties if the judicial review is unsuccessful (a petitioner would still be able to claim their expenses from the respondent if the judicial review is successful).

The Scottish Government has stated that it made its reforms on QOCS in relation to personal injury claims to increase access to justice by creating a more accessible, affordable and equitable civil justice system. This same need must be applied to environmental cases.

ERCS’s position is that the PEO regime – and the rule that expenses follow success – should be replaced with ‘qualified one-way costs shifting’ (QOCS) for Aarhus cases.

3.     Court fees

A petitioner must pay court fees and fund the costs of preparing and printing documents for the court, which can amount to several thousands of pounds.

Whilst the Scottish Government has suggested to the ACCC that it ‘expects’ PEOs to cover all stages of the judicial review procedure, including court fees, the ACCC has noted that ‘expect’ is an insufficient guarantee to ensure compliance with the Convention, and that clarity from the Government is required in this regard.

The Faculty of Advocates takes the position that ‘as a matter of principle the civil justice system should be funded by the state, not litigants.’ It warns that the Scottish Government’s aim to fully recover the cost of the business undertaken in the courts may be illegal.

A joint NGO report on barriers to public interest litigation recommends that the Scottish Government ‘consider introducing a presumption that court fees will be waived for registered charities and not-for-profit organisations and community groups in public interest cases, including interventions.’

ERCS’s position is that court fees should be funded by the state rather than litigants.

What’s next?

The ACCC report will be considered by the main governing institution of the Aarhus Convention, the Meeting of the Parties, this October. ERCS expects that the Meeting of the Parties will endorse the ACCC’s findings, and that the ACCC will be asked to carry out further periodic reviews.

The ACCC report will be considered by the main governing institution of the Aarhus Convention, the Meeting of the Parties, this October. ERCS expects that the Meeting of the Parties will endorse the ACCC’s findings, and that the ACCC will be asked to carry out further periodic reviews. 

The Scottish Government’s commitment to a human right to a healthy environment represents a shift in the ‘mood music’ on access to justice on the environment, one which we hope signals a willingness to comply with its international obligations under the Aarhus Convention. But   incorporating the human right to a healthy environment as part of a new Human Rights (Scotland) Act,  will take some years. The reforms that we have outlined can, and should, be implemented now to work alongside and inform the Human Rights (Scotland) Bill process. 

ERCS will raise these issues with key MSPs, Cabinet Secretaries and Ministers, in line with  the findings of the ACCC. 

References

ERCS (Sept 21) Information Sheet on Access to justice on the environment, and whether Scotland is providing it

Aarhus Convention Compliance Committee (Aug 21) Report of the Compliance Committee on compliance by the United Kingdom of Great Britain and Northern Ireland – Part I and Part II

Scottish Environment LINK Legal Governance Subgroup (May 2017) Legal Aid Review Consultation response

Faculty of Advocates (Jan 2018) Response to Consultation (October 2017) on Scottish Court Fees 2018-2021

Human Rights Consortium Scotland, Friends of the Earth Scotland, Rape Crisis Scotland, Clan Childlaw, Shelter Scotland, Justright Scotland, Amnesty International (2018) Discussion Paper: Overcoming Barriers to Public Interest Litigation in Scotland

RSPB, Friends of the Earth England, Wales, and Northern Ireland, Friends of the Earth Scotland, and Environmental Rights Centre for Scotland (19 July 2021) Re: Compliance Committee’s draft report to the seventh session of the Meeting of the Parties on the progress by the Party concerned to implement decision VI/8k