Parliamentary Briefing – Civil litigation and access to environmental justice (Jan 2018)

We provided this briefing to MSPs as they prepared for their first debate and initial vote on the Civil Litigation (Expenses and Group Proceedings) Bill, on Tuesday 16 January 2018. The Bill will make changes to the rules for bringing civil cases in Scottish courts.

As part of the United Nations’ Aarhus Convention, Scotland has committed to make sure people can seek justice in environmental cases, in a system that is “fair, equitable and not prohibitively expensive”. The United Nations body that oversees the Aarhus Convention has found repeatedly that Scotland is failing to fulfil that promise.

We need a comprehensive review of the legal system in Scotland to identify and remove the many barrers that stand between ordinary people and securing environmental justice. But in the meantime, there are two real improvements that could be made right now through the Civil Litigation Bill:

• Extending the system of qualified one-way cost shifting, which the Bill will introduce for personal injury cases, to environmental cases too. This is a protective system that makes sure ordinary people don’t face huge financial risks in bringing a case to court.
• Introducing an opt-out system for group proceedings, so that every person who has been affected by a large-scale environmental harm can be represented in court, without each having to be individually contacted and go through the process of formally joining the case.