Protective expenses orders (‘PEOs’) have been granted to two clients of ERCS’s Law Service to allow their environmental judicial review cases to proceed to full hearings.
PEOs are court orders which limit a party’s liability to pay their opponents’ legal expenses in certain types of environmental cases. PEOs are intended to provide certainty for a litigant at an early stage in their case.
Our client in the first case is Mount Florida Community Trust (‘MFCT’). They are challenging a decision by Glasgow City Council to grant planning permission for a residential development at Mount Florida Bowling Club. MFCT aims to retain the site of the former Mount Florida Bowling Club as open space for the benefit of the local community.
Our client in the second case is Mr James Ramsay. Mr Ramsay is a hill-farmer who is concerned about a proposed commercial forestry project which would involve the afforestation of hundreds of hectares of land at Duchrae in Dumfries in Galloway – and the adverse consequences of that project on biodiversity. Mr Ramsay is challenging a decision by Scottish Forestry that no environmental impact assessment was required for the forestry project.
PEOs are not automatically granted. Lengthy PEO applications must be made to the Court of Session. Applicants must persuade a judge that their case would be ‘prohibitively expensive’ without a PEO.
Opponents have the opportunity to challenge PEO applications. The PEOs in both cases were opposed by all the opponents involved.
In MFCT’s case, the Council argued that the planning decision did not fall within the scope of the Aarhus Convention. The Court did not agree and granted a PEO which caps MFCT’s liability to pay the Council’s legal expenses if the judicial review is unsuccessful at £5,000. The PEO also includes a ‘cross-cap’ of £30,000, which is the maximum sum MFCT can recover from the Council to pay its legal expenses if the judicial review is successful.
In Mr Ramsay’s case, the Scottish Government and the ‘interested party’ (Duchrae Estates Ltd – the company behind the commercial forestry project) made several arguments against a PEO, including the relevancy of Mr Ramsay’s share in his hill-farming business and that he should have demonstrated to the Court that it would not be possible for him to fund the litigation by borrowing. The Court granted a PEO to Mr Ramsay in the same terms as the PEO awarded to MFCT (with £5k/£30k caps).
ERCS principal solicitor and legal director Ben Christman commented that:
“We are relieved that PEOs have been granted in both cases and that our clients have the protection they need against adverse legal expenses so that their cases can proceed to full hearings. However, these cases demonstrate how the PEO rules can act as a barrier to accessing justice. Both PEO applications were opposed and required hearings. This caused our clients additional costs for representation at hearings by counsel. The PEO rules allow parties to oppose PEO applications and invite expensive ‘satellite litigation’ over whether a PEO should be granted.”
ERCS advocates for PEOs to be replaced with a fairer system known as qualified one-way cost shifting, which is already used in personal injury claims. This could make Scotland’s civil justice system more accessible, affordable and equitable, enabling more people to challenge breaches of environmental law in court.
The instructing solicitors in these cases for ERCS’s Law Service are Kate Smith (for MFCT) and Ben Christman (for Mr Ramsay). Shaun McPhee, advocate, has represented MFCT. Jonathan Deans, advocate, and Shaun McPhee have both represented Mr Ramsay. Laura McDonagh, Partner at Drummond Miller LLP, is acting as Edinburgh agent.
The substantive hearing in Mr Ramsay’s judicial review is scheduled to take place on 25 September 2026 and the substantive hearing in MFCT’s case is set for 8 October 2026.
ERCS’s Law Service is not charging fees to either client. The advocates and Edinburgh agents are acting on a reduced fee basis in light of the public interest nature of these cases.
