Petition By John Muir Trust Against The Scottish Ministers And Sse Generation Limited And Sse Renewables Developments (uk) Limited
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Drummond Young,Lord Brodie |
| Judgment Date | 29 April 2016 |
| Neutral Citation | [2016] CSIH 33 |
| Published date | 10 May 2016 |
| Docket Number | P843/14 |
| Court | Court of Session |
| Date | 29 April 2016 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 33
P843/14
Lady Smith
Lord Brodie
Lord Drummond Young
OPINION OF LADY SMITH
in the Petition
by
JOHN MUIR TRUST
Petitioners and Respondents;
against
SCOTTISH MINISTERS
Respondents and Reclaimers;
and
SSE GENERATION LIMITED, AND SSE RENEWABLES
DEVELOPMENTS (UK) LIMITED
Interested Parties:
Petitioners and Respondents: Agnew of Lochnaw QC; Drummond Miller LLP
Respondents and Reclaimers: Mure QC, Byrne; Scottish Government Legal Directorate
Interested Parties and Reclaimers: Wilson QC, Gill; Cameron McKenna LLP
29 April 2016
Introduction
[1] This is a motion under Rule of Court 58A, for a Protective Expenses Order (“PEO”).
[2] The applicant (“JMT”) is a charity which has as its principal object the conservation and protection of wild places with their indigenous animals, plants and soils for the benefit of future generations. Put shortly, it is a non governmental organisation (“NGO”) which promotes environmental protection. Accordingly, a fundamental and key aspect of its policy actions is the monitoring of developments which would impact on wild land and taking whatever they consider to be appropriate action: Affidavit of Helen McCabe, JMT’s Head of Policy, para 3. It is, accordingly, not disputed that they have standing to bring the present proceedings which are a petition for judicial review of a planning decision in relation to a proposed wind farm to be sited at Stronelairg in the Monadhliath Mountains in Invernesshire: Directive 2011/92/ EU arts 1(2)(e) and 11(3).
[3] Nor is it disputed that JMT is, in these circumstances, entitled to make an application for a PEO under Rule of Court 58A.
Outer House
[4] JMT made an application for a PEO in the Outer House. By interlocutor dated 31 October 2014, it was refused. At paragraph 9 of his opinion, the Lord Ordinary explained:
“ ….Sir Crispin of Lochnaw QC submitted that the petitioner, as a charity, needed certainty as to its potential liability in expenses. They could not risk a potential open-ended liability. As I understood him, counsel said that petitioners probably could not go ahead on the basis of financial information at present available, but they certainly could not go ahead in the present circumstances in which they found themselves.”
It was, at that stage, estimated that the expenses in relation to the proceedings in the Outer House would be likely, in total, to be in the order of £160,000. It was not suggested that that figure was objectively unreasonable given the number of parties and the forthcoming debate hearing which was due to last three days.
[5] JMT’s application for a PEO was, however, refused by the Lord Ordinary who, put shortly, appears to have considered that from what he could glean of the resources then available to them, he was not satisfied that the proceedings would be prohibitively expensive.
[6] JMT proceeded notwithstanding their indication to the Lord Ordinary that they could not do so without the benefit of a PEO. They were successful. In his interlocutor of 4 December 2015, reducing the relevant planning consent, the Lord Ordinary reserved meantime all questions of expenses.
[7] By referring to the fact that JMT proceeded notwithstanding the lack of PEO protection, I do not mean to suggest that that is determinative of the issue of whether or not the proceedings are prohibitively expensive ; to do so would conflict with what was said by the CJEU in R (Edwards) v Environment Agency [2013] 1 WLR 2914 C – 260/11 at paragraphs 43 and 47, namely that the fact that a claimant has not in fact been deterred “is not of itself sufficient to establish that the proceedings are not prohibitively expensive..”. That does, however, indicate that it is nonetheless of some relevance.
[8] The respondents and the interested parties have reclaimed. JMT has cross reclaimed in respect of the Lord Ordinary’s decision to refuse to grant a PEO.
Rule of Court 58A
[9] An application for a PEO may be made in relation to a reclaiming motion: Rule of Court 58A.3(3).
[10] The court must make a PEO if it is satisfied that the proceedings are “prohibitively expensive” for the applicant. Proceedings are prohibitively expensive “if the applicant could not reasonably proceed with them in the absence of such an order”: Rule of Court 58A.1.
[11] Any PEO must provide for the applicant’s liability in expenses to be limited to £5,000 or, on cause shown, less: Rule of Court 58A.4(1) and (2). Accordingly, the import of “in the absence of such an order” in the definition of “prohibitively expensive” in RC 58A.1 is that the applicant could not proceed in the absence of an order restricting their liability to other parties to no more than £5,000. A PEO must also, by way of a reciprocal cap, limit the respondent’s liability to £30,000 or, on cause shown, a higher sum: Rule of Court 58A.4(3) and (4). If the applicant seeks to invoke the court’s power to lower the cap on his liability or increase the reciprocal cap, he requires to set out his grounds for doing so in the motion: Rule of Court 58A.3(4)(e).
[12] JMT seeks to increase the reciprocal cap to £50,000. In the motion, the justification provided is that JMT estimates that their expenses in the reclaiming motion are likely to be in the order of £50,000.
[13] Finally, when determining an application for a PEO, the court must take into account all the circumstances including the need to ensure that it is not prohibitively expensive for the applicant to continue with the proceedings, the extent to which the applicant would benefit if successful, the terms on which the applicant is represented, whether and to what extent the applicant is acting on behalf of another person and whether and to what extent the applicant is agreeable to the imposition of a reciprocal cap (Rule of Court 58A.5(1)).
[14] Parties are agreed that the total expenses in relation to procedure in the Inner House are likely to be in the order of £150,000 (£50,000 each).
Relevant authorities
[15] Article 11(1) of Directive 2011/92/EU (“the EIA directive”) requires Member States to ensure “in accordance with the relevant national legal system” that members of the public with a sufficient interest:
“have access to a review procedure before a court of law or another independent or impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive….”.
Article 11 also requires that “any such procedure shall be fair, equitable, timely and not prohibitively expensive.” The latter reflects the provisions of article 9.4 of the Aarhus Convention.
[16] The application of article 11 was the subject of a reference to the CJEU in R (Edwards) v Environment Agency (no 2)(ECJ) [2013] 1 WLR 2914. The judgment of the court includes the following: the issue of whether costs are prohibitively expensive may be considered at a preliminary stage, on a possible capping of costs, or at any later stage when the court is considering an award of costs (paras 35 and 48); the requirement that costs be not prohibitively expensive does not prevent courts making an order for costs provided they are reasonable in amount and, taken as a whole, not prohibitively expensive for the party concerned (paras 25-6); the objective is to ensure effective judicial protection without excessive cost (para 38); the costs must not exceed the financial resources of the party concerned nor appear, in any event, to be objectively unreasonable, bearing in mind that persons and associations require to play an active role in defending the environment (paras 39 and 40); the fact that an applicant has not been deterred from litigating is not in itself sufficient to establish that the proceedings are not prohibitively expensive (paras 43 and 47); the court must take account of an applicant’s financial circumstances (para 40); the court must also carry out an objective analysis of the costs – when doing so it may have regard to the situation of the parties, whether the applicant has reasonable prospects of success, the importance of what is at stake for the applicant and for the protection of the environment, the complexity of the relevant law/procedure, the potentially frivolous nature of any claim, and any availability of legal aid or a costs protection scheme (para 46). Expenses which are disproportionate to the proceedings – as may be demonstrated by one or more of those factors listed by the CJEU and subsequently endorsed by Lord Carnwath (R(Edwards) v Environment Agency (No 2) [2014] 1 WLR 55 at para 23) – are to be regarded as prohibitively expensive, even if subjectively viewed, it would be reasonable for the applicant to pay them out of his financial resources.
[17] Article 11 was also discussed in European Commission v United Kingdom C-530/11 [2014] 3 CMLR 6 when the CJEU considered whether or not the UK had failed to transpose the directive into national law. The judgment of the court confirmed that affording a discretion to the court when applying the national costs regime in a specific case was not, of itself, incompatible with the requirement that proceedings be not prohibitively expensive. Affirming what had already been said in Edwards, it stated the requirement that costs be not prohibitively expensive does not prevent the courts from making an order for costs provided they are reasonable in amount and, taken as whole, not prohibitively expensive for the party concerned (para 44) and that where a court is making an award of costs in an environmental dispute, it must satisfy itself that the requirement that those costs be not prohibitively expensive has been complied with (para 45). The CJEU also observed that the possibility of a PEO ensures greater predictability with the relevant predictability being referred to as “reasonable predictability” (para 54 and 58) in the context of...
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