Natural justice

When Donald Trump was angered by the Government’s approval of a major wind farm he had opposed, his first reaction was to head to the courts.

Last month, no sooner had Scottish ministers made the decision to approve the European Offshore Wind Deployment Centre, which will be visible from his golf complex near Aberdeen, than he issued a statement which promised: “We will spend whatever monies are necessary to see to it that these huge and unsightly industrial wind turbines are never constructed.” In that same week, a new amendment passed into the rule book, making it easier for people without a billionaire’s fortune to draw on to challenge, in court, any development impacting on the environment.

But in Scotland, campaigners say the costs and complexities of court action are still putting people off.

Fifteen years ago in Denmark, the Aarhus Convention, which has been signed up to by more than 40 countries, as well as the European Commission, established a number of rights for individuals and communities regarding the areas in which they make their homes.

It said: “Every person has the right to live in an environment adequate to his or her health and wellbeing, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations.” One of the three key pillars to the convention is access to justice and despite a number of high-profile cases which have been going through the legal system, there is a fear that the principles of Aarhus are not being upheld.

The Act of Sederunt (Rules of the Court of Session Amendment) came into force on 25 March and says that the court must make a Protective Expenses Order whenever it “is satisfied that the proceedings are prohibitively expensive for an applicant”.

However, Friends of the Earth Scotland — which has been highlighting the costs of taking action in the courts — said Protective Expenses Orders were still too high, with the minimum cost capped at £5,000 and a presumption that the total legal bill will amount to £35,000. It is calling for ‘One Way Cost Shifting’, the aim of which would be that if the case is judged to have been brought in the public interest and the applicants are not judged to have acted unreasonably, they are not liable to any costs if they lose the case.

Fife pensioner Penny Uprichard is currently waiting to hear from the UK Supreme Court about her challenge to the plans, already approved by the Scottish Government, for more than 1,000 houses and a science park in St Andrews.

At the time of her first challenge in July 2009, she did not apply for a Protected Expenses Order, as none had been awarded in Scotland before and she said it would be “pretty doubtful” she would get one. She lost her first appeal to the Outer House of the Court of Session, and a subsequent appeal to the Inner House — and was told she was liable to costs of £173,000. Her challenge to the Supreme Court heard last month has been protected to just £6,000 — a total of £3,000 for Fife Council and £3,000 to Scottish ministers if she loses.

She said: “If I’d had any idea that nearly four years on, I’d still be in this position, I doubt very much I’d have done it. But you don’t know and the point was that if there’s an avenue, if you’re fighting for something you believe is justice, then you continue.

“The costs alone would rule most people out completely. But once you’ve embarked on it — at least until the first court hearing — you’ve got to carry on with it, but it is a very daunting process.”

Earlier this year, Marco McGinty from Largs appealed a 2011 ruling against a new power station at Hunterston in Ayrshire to the Court of Session. Even though Ayrshire Power had withdrawn its planning application for a new coal power plant, the site is still earmarked for development.

Friends of the Earth campaigner, Mary Church, said: “The key barrier is simply the monumental cost of litigation. Who can afford to risk tens of thousands of pounds in the public interest?

“Protective Expenses Orders are one way of tackling the issue of prohibitive expenses in environmental cases as they provide some certainty and clarity in relation to costs from an early stage. However, they must be viewed in the context of the overall cost regime, which in Scotland, isn’t good.”

A common claim made against individuals and groups who challenge major developments — which will often involve the promise of jobs and economic development — is that they are clogging up the court system and leading to long delays.

Law firm Brodies published research earlier this year in response to proposals from Prime Minister David Cameron to limit the use of judicial review in England and Wales, calling it “a massive growth industry in Britain” and many cases were “completely pointless”.

The research in Scotland found there were only 64 cases between 2003-12 — out of about 40,000 planning applications north of the border each year — with a significant number being brought by developers, not private individuals. Only half the cases were brought by objectors and a private individual had a success rate of only 7 per cent.

Church added: “We don’t know how many cases don’t even happen because they’re put off the idea of the initial judicial review. Friends of the Earth Scotland took a judicial review against the Government’s decision to go ahead with the M74 and this was in 2008. We went to the court to get a PEO, but none had been granted in Scotland by that point and we were advised we might not get one.

“Our legal team advised us that this might set a negative precedent in case law. We felt we couldn’t go ahead without a Protective Expenses Order, so we pulled out.” The Scottish Government put out a consultation document in February which has put forward ways to reform judicial reviews, this includes a mechanism to sift out “unmeritorious applications” at an early stage, which take up a “disproportionate amount of sitting days” for courts. It would mean that those cases which are judged to have little prospect of success would be thrown out at an early stage.

Although there were recommendations from the Scottish Civil Courts Review by Lord Gill, it has also said that the law should be changed to make who can bring challenges less restrictive — changing from having both title and interest to just ‘sufficient interest’ — the Government has said this has already been previously demonstrated in case law, so it does not need to be changed.

A Government spokeswoman said: “A Scottish Government spokesperson said: “Court rules for granting Protective Expenses Orders in environmental cases came into force on 25 March this year. These help limit parties’ costs in bringing environmental challenges - and followed an extensive consultation by the Scottish Government during 2012. The Scottish Government has also commissioned Sheriff Principal James Taylor to review the cost and funding of litigation. Sheriff Principal Taylor is expected to report later this year.” Uprichard says she is heartened that there are challenges other than hers going through the courts, other people willing to battle for the environment despite the odds.

She said: “It is a very difficult thing to do and decisions haven’t always been what they should be — they haven’t always upheld the challenges.

“But I think the fact that people are doing it is encouraging. As we become more and more urbanised, areas — particularly wild areas — are seen as development opportunities. It does make you feel that you’re a small voice in the wilderness doing this sort of thing. I was encouraged by the support I’ve had from people in and around St Andrews and further afield, but it’s very difficult to make your voice heard.”