Martin James Keatings Against The Advocate General For Scotland And Others
| Jurisdiction | Scotland |
| Judge | Lady Poole |
| Date | 30 July 2020 |
| Court | Court of Session |
| Published date | 30 July 2020 |
OUTER HOUSE, COURT OF SESSION
2020 CSOH 75
A76/20
OPINION OF LADY POOLE
In the cause
MARTIN JAMES KEATINGS
Pursuer
against
(FIRST) THE ADVOCATE GENERAL FOR SCOTLAND;
(SECOND) THE LORD ADVOCATE;
(THIRD) THE SCOTTISH MINISTERS
Defenders
Pursuer: O’Neill QC, Welsh; Balfour+Manson
First Defender: Webster QC, Pirie; Advocate General for Scotland
Second and Third Defenders: O’Neill; Scottish Government Legal Directorate
30 July 2020
Introduction
[1] In this ordinary action, the pursuer seeks declarator that the Scottish Parliament has
power to legislate for the holding of a referendum on whether Scotland should be an
independent country, without requiring the consent of the UK government or any further
amendment of the Scotland Act 1998 (the “1998 Act”). The case came before me on the
pursuer’s motion for a protective expenses order (“PEO”). The pursuer argued that as a
matter of effective remedy and access to a court, it was appropriate and necessary to grant a
2
PEO; and that all criteria for grant of a PEO were met. The motion was opposed by the first
defender. The first defender argued that it was not fair and just to grant a PEO because the
necessary criteria were not met. The motion was not resisted by the second and third
defenders, although it was submitted that it remained open to the court to refuse the motion.
[2] The motion sought a PEO restricting the pursuer’s liability in expenses in total to the
defenders to the sum of £5,000, and capping the defenders’ liability in expenses to the
pursuer at £30,000 each (£90,000 in total as there were three defenders). The pursuer’s
estimate, discussed later, was that the judicial expenses for the action per party would be
nearly £140,000. If granted, the PEO would protect the pursuer from being responsible for
the full judicial expenses of each of the three defenders if any orders for expenses were made
against him, for example if he lost the case. Instead he would pay a maximum total of
£5,000. Grant of a PEO might therefore have the effect of the public purse bearing
significant additional liabilities for legal expenses than if no PEO was made. In return, the
suggested PEO restricted the amount of expenses the pursuer could claim from the
defenders to a maximum of £90,000, if an award of expenses was made in his favour, for
example if he won. The first defender argued that if the court was minded to grant a PEO,
the first defender’s maximum liability in expenses to the pursuer should also be restricted to
£5,000, so both parties were on an equal footing. The second and third defenders submitted
that, if an order was granted, there should be a cumulative cap of £30,000 covering both the
second and third defenders, since they were not being separately represented.
[3] For reasons set out below, I refuse the motion for a PEO against any of the defenders.
I do not consider that the criteria for grant of such an order are met.
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