While the granting last week of the second ever Protective Expense
Order in Scotland is in some ways a welcome step towards properly
implementing the Aarhus Convention on Access to Justice in
Environmental Matters, the conservative reasoning behind the ruling
and the high level at which the cap was set highlights how far we have
to go before the objectives of Aarhus permeate our public law.

Almost a year to the day that the first ever PEO was granted in
Scotland to campaigners challenging the development of a new coal
fired power station at Hunterston, Road Sense campaigners had their
potential liability for the other side’s costs in their Judicial
Review of the Aberdeen Western Peripheral Route (AWPR) capped at
£40,000.

In some ways things appear to be moving very much in the right
direction: the Hunterston ruling was brief and notably absent of any
reference to Aarhus, while the Road Sense ruling runs to 26 pages
littered with references to the Convention, and the need to comply
with it.

However, Lord Stewart’s ruling dismisses recent progressive thinking
on Aarhus implementation from south of the border, and sets the PEO
considerably higher than that in the Hunterston case.

The cap has

been set at exactly the amount Road Sense estimated they
could raise from existing funds and pledged support for legal
proceedings, minus their own estimated fees (which are lower than
normal due to pro bono work from senior counsel). Effectively, the
Road Sense ruling limits the campaigners’ total potential outgoings
from a maximum of £90,000 to a still pricey £70,000.

In England, where the equivalent Protective Cost Orders (PCO) are far
more common – and often set considerably lower – this subjective
approach to the affordability of proceedings has been criticised by
Lord Justice Sullivan, on the basis that it is not consistent with the
objectives of Aarhus.

New rules on PEOs are currently being drafted in response to the
recommendations of Lord Gill’s 2009 review of Scotland’s Civil
Courts. The rules – still in draft form – are not yet publicly
available, but it seems clear from the Road Sense ruling that they
reflect a subjective approach, requiring the courts to consider
funding available to the applicant.

Aarhus goes beyond environmental matters; in focusing on interactions
between the public and public authorities, it is also about government
accountability, transparency and responsiveness. The two Scottish PEOs
were granted in Judicial Reviews questioning allegedly poor decision
making and consultation by the Government. While the outcomes remain
to be seen, effectively the petitioners are exercising their
democratic right in the greater public interest, and paying to do so.

In his 2010 updated review of Access to Environmental Justice in
England & Wales, Sullivan proposed

that PCOs be scrapped altogether
and qualified one-way cost shifting (QuOCS) introduced instead. This
would grant automatic protection from liability for the other party’s
costs to individuals and NGOs taking a case under the Aarhus
Convention, as long as their case passed the ‘permission filter’ (i.e
was considered meritorious and in the public interest by the
judiciary, and therefore allowed to go ahead).

Sullivan’s reasoning is that this is the simplest and most effective
way of complying with the Aarhus demands that access to justice must
not be prohibitively expensive, and to avoid the ‘chilling effect’ –
where uncertainty about potential liability puts people off commencing
cases – by ensuring all possible costs are up front from the start.

If Road Sense lose their case their members and supporters should not
be forced to pay for their democratic right to question a Government
process, in a case considered to be in the public interest by our top
judges. The Scottish Government and the Rules Council need to look
again at their responsibility under the Aarhus Convention and consider
whether the new rules on PEOs should act only as a stopgap until one
way cost shifting can be implemented.

Lord Stewart begins his ruling by noting that “because of developments
elsewhere, [his] Opinion as to the wider issues will be as if writ on
water”. In the interests of access to justice, I can only hope he is
right.