Back to the future to stand up for our environment?

In June this year, Friends of the Earth Scotland became the first Scottish NGO (and the first environmental NGO in the UK) to intervene in a case at the UK Supreme Court. The case relates to insurance claims by victims of asbestos exposure who suffer from pleural plaques – scarring of the lungs – an apparently asymptomatic condition. The insurers are challenging the validity of a 2009 Act of the Scottish Parliament that ensures individuals can sue for damages if they contract the condition.

An interesting case, but what on earth has it got to do with Friends of the Earth Scotland, you might think?

The insurers are challenging the ‘title and interest’ of a number of individuals with pleural plaques to argue against the case. Title and interest is the Scots law test of standing, or the right to have your case heard by the court.

Title and interest is problematic because in practical terms it has been interpreted as having a demonstrable private interest – for example property – making it very difficult to take a public interest case, which many environmental cases are.

It is this particularly restrictive test that makes it so difficult for individuals, communities and NGOs to challenge poor decision-making by public authorities and general breaches of environmental law. That, and of course, the impossibly high costs of litigation.

Title and interest has reared up in a number of high profile environmental cases in the last couple of years: in Road Sense’s case against the Aberdeen bypass the campaign group was forced to drop out of the action leaving it’s chair as sole petitioner because Ministers confirmed they would challenge the group’s standing; Mrs Forbes was found by the court not to have title and interest to sue Donald Trump and Aberdeenshire Council despite her home being under threat from Trump’s golf course development; and Marco McGinty’s challenge against the inclusion of the coal fired power station at Hunterston in the National Planning Framework saw Scottish Ministers challenging his title and interest to sue.

A classic example of how title and interest acts as a barrier is demonstrated in a case taken by Age Concern, who sought judicial review of an official circular giving guidance on legislation on hardship payments for severe weather. The courts recognised their title (as a body constituted to represent the elderly) but rejected their interest, concluding that they would need a directly affected individual to bring the case.

Effectively, it is almost impossible to take a case in the public interest to court – which

environmental cases tend to be – unless you can demonstrate a clear private interest.

But it hasn’t always been like this: in the 19th century numerous cases were taken – and accepted by the courts – in order to protect the common interest.

For example, in 1882 the petitioner in Grahame v Magistrates of Kirkcaldy sued to prevent the construction of municipal stables on land set aside for common use. Grahame sued as a member of the community rather than a landowner, and in doing so on behalf of the whole community, was entitled to claim for his expenses.

Back in the 21st century, the Scottish Government has already indicated its willingness to consider introducing a simpler test of ‘sufficient interest’, as recommended by Lord Gill in his review of the civil courts, but it could be some time before this happens, and it is not clear how this test would be interpreted by the courts.

We hope that our intervention in Axa case at the UK Supreme Court, could help set a precedent that enables people to go to court to fight environmental cases that are in the public interest sooner, rather than later.

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Find out more about Friends of the Earth Scotland’s Access to Environmental Justice campaign, which also tackles the financial barriers to accessing justice.

If you missed out on the fantastic ‘You’ve been Trumped’ film the first time round there’s another chance to see it at the Take One Action Film Festival between 30th September and 2nd October