The conditions required for public interest litigation in Scotland have seen a marked improvement over the last few years. This undoubtedly comes at an interesting time. Scotland has seen increased political participation and appetite since the Independence Referendum in 2014. Furthermore, alternative media platforms have pushed more issues that effect the public at large, such as air pollution, data privacy, surveillance, and corruption, into the mainstream media. As such these conditions, when taken with the changing public law field, may see the courts come involved in more widespread issues in Scotland than ever before.
University of Glasgow law students and former LSA volunteers, Graeme Di Rollo and Joshua Hale, examine the changes that have taken place on the Scottish legal landscape. This piece examines recent changes to the legal barriers that had prevented public interest groups seeking redress from the courts, as well as the financial protections that are in place so that litigation is a practically viable option.
Prior to the decision of the Court of Session in AXA General Insurance v HM Advocate, claimants seeking to bring cases of potentially great public interest against public authorities were confronted with barriers on two fronts — sufficient standing to initiate public interest litigation, and a lack of financial resources to support it. These substantive and pecuniary barriers to public interest litigation have been reduced, although not completely diminished, by a recent shift in the policy of the Scottish courts towards standing to seek judicial review on public interest grounds and the preliminary question of liability for the expenses of public interest litigants. This blog will briefly outline the judicial forces underlying this change in approach, before moving on to a discussion of the current standing and expenses rules in facilitating public interest litigation; concluding with comment on the development of so-called ‘Protective Expenses Orders’ through which the Court is able reduce or exclude liability for the cost of public interest proceedings.
- Changing Attitudes
Explaining the shift in policy of the courts towards both the law of standing and the law of expenses requires appraisal of the changing role of judicial review in its current legal landscape. Recent decades have seen broader notions of good administration and human rights increase in prevalence, developing in line with legislation such as the Human Rights Act 1998 and the European Communities Act 1972. This broadening of the Courts’ supervisory remit has, in turn, mandated an increase in focus on the protection of constitutional values which is difficult to square with private interest litigation and minimalist judicial review. That is not to say that the traditional conception of judicial review does not play a role in this new legal landscape. Indeed, framing the case for a change in approach in terms of the notion of judicial review as a tool to keep public authorities within the bounds of their powers might present a more convincing basis for shift in policy; even if the differences between these concepts is more academic than practical. In any event, the central issue is as follows: if we employ a system of judicial review which requires a specific personal interest on behalf of the applicant in the outcome of the case, there is no guarantee that public authorities will be held account for their failure to comply the requirements of the law. As many statutes confer powers on public authorities relating to interests held equally by a large number of people, the case may be that no one will have standing, or that those with standing will not deem it in their best interests to raise an action. But granting standing on wider public interest grounds is no guarantee of success. Financing remains a significant hurdle for applicants to overcome. At present, the legal aid schemes in the UK’s three jurisdictions do not support public interest litigation, and private funding is difficult to negotiate. Why finance litigation when no one stands to gain personally? Thus, we are presented with two barriers to public interest litigation: one substantive and one pecuniary. The extent to which these barriers have been addressed by recent developments in the law of standing and the law of expenses will be discussed below.
- A Question of Standing
Until recently, the main barrier to public interest litigation was the ‘private interest’ model of judicial review employed by the Scottish courts, which tied the question of standing to sue to an identifiable personal interest in the outcome of the case. As noted above, such a model prevents those seeking to bring to light a matter of genuine public interest from doing so, and, as a result, is not easily reconciled with recent changes in the UK’s legal landscape. In AXA, both Lords Hope and Reed highlighted the ill-fit of private law precepts of standing to determining public law issues. Instead, the operative test was whether the applicant has sufficient interest to invoke the court’s supervisory jurisdiction, even though he could not demonstrate standing under the traditional rules. Noting that the function of the courts must necessarily go beyond the protection of private rights, Lord Reed explained the shift away from the private interest model as one of principle:
The essential function of the courts is the preservation of the rule of law, which extends beyond the protection of individuals’ legal rights. There is thus a public interest involved in judicial review proceedings, whether or not private rights may also be affected. A public authority can violate the rule of law without infringing the rights of any individual… A rights-based approach is therefore incompatible with the performance of the courts ‘function of preserving the rule of law… 
The approach of the Court in AXA was confirmed by the Supreme Court in Walton v Scottish Ministers. It can therefore be said in no uncertain terms that public interest standing is a clearly established rule of Scots law. Liberalised rules of standing raise their own problems, however; particularly in relation to funding. Those who contribute their own funds are faced with the not only the prospect of losing the money they invest if their case is dismissed, but also paying substantial awards to the other side. As summarized by Toohey J., a judge of the High Court of Australia, ‘There is little point in opening the doors to the courts litigants cannot afford to come in’. It is this question of funding to which we presently turn.
- The Problem of Expenses
As you will no doubt be aware, the standard position in both Scotland and England is that expenses follow success; that is, the losing party will pay the legal expenses of the other. Any exclusion or limitation of liability on the part of the losing party must therefore be framed as an exception to this general rule. In light of the relaxed rules on standing, and in the interests of preventing applicants from being deterred from bringing important cases, the Courts have been required to consider such exceptions in the context of public interest litigant liability. As has been already been stated, there is little point in opening a new avenue for litigants in cases of public interest if they are ultimately unwilling to pursue their claims for fear of being bankrupted by legal costs.
Orders which exclude or limit the liability in expenses of public interest litigants in judicial reviews and statutory appeals are called Protective Expenses Orders (PEOs) in Scotland and Protective Cost Orders (PCOs) in England and Northern Ireland. They have taken on a particularly important role in promoting many of the values associated with public interest litigation and, in particular, ensuring that public bodies act lawfully.
Although the Courts have accepted such interlocutory orders as competent for the best part of two decades, the discretion to grant PEOs was exercised only on an exceptional basis; even in cases involving public interest challenges. It was not until the case of R (Corner House Research) v Secretary of State that the law was properly reviewed. Here, the claimants sought judicial review of a decision taken by the Director of the Serious Fraud Office to discontinue a criminal investigation into allegations of bribery by BAE Systems plc relating to the Al-Yamamah military aircraft contracts with Saudi Arabia. The claimants also sought PCOs to limit their liability for legal expenses. Determining that it was fair and just to make a PCO in all the circumstances, the Court set out a list of criteria as to when its discretion should be exercised to grant such an order:
- A PEO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
- The issues raised are of general public importance;
- The public interest requires that those issues be resolved;
iii. The applicant has no private interest in the outcome of the case (although see below);
- Having regard to the financial resources of the applicant and the respondents and to the amount of costs that are likely to be involved, it is fair and just to make the order;
- If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
- If those acting for the applicant are doing so pro bono, that will be likely to enhance the merits of the application.
Moving away from the exceptional exercise of the Court’s discretion, subsequent cases have emphasised that such orders should be applied flexibly. Indeed, even the Corner House criteria have been relaxed over the years — in one case, it was indicated that the fact an applicant had a private interest in the outcome of the case would not automatically exclude him from the applicability of the remedy.
The shift in policy of the courts towards granting such orders reflects an increased interest in cases which raise issues of general public importance; both as a means of providing checks on public authorities acting arbitrarily or unlawfully, and as a tool to achieve good administration. In order to acquire a full picture of the role of PEOs in their public interest litigation context, however, it is necessary to take stock of two further developments; firstly, the adoption in 2013 of new rules for public interest environmental law litigation in all three UK jurisdictions, and, secondly, Sheriff Principal Taylor’s Review of Expenses and Civil Litigation in Scotland. It is to these recent developments we presently turn.
- Development and Utility of Protective Expenses Orders
In the majority of cases, the grant of a PEO remains a matter of discretion for the deciding court. However, the access to justice obligations imposed by the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) have necessitated the introduction of special rules for environmental litigation in the Court of Session. These rules are contained in Chapter 58A of the Rules of the Court of Session, which came into force on 25 March 2013, and have greatly informed the debate over the approach of the courts to the granting of PEOs.
When will a court make a PEO under the new environmental Rules?
Chapter 58 of the Rules defines a PEO as an order which regulates the liability for expenses of all or any of the parties ‘with the overall aim of ensuring that proceedings are not prohibitively expensive for the applicant.’ 1’Proceedings are deemed to be ‘prohibitively expensive’, and therefore non-compliant with the obligations in the Directive, if the applicant could not reasonably proceed with them in the absence of a PEO.’ A PEO may be refused by the court where the applicant fails to demonstrate sufficient interest in the proceedings, or where the proceedings otherwise have no real prospect of success.’ Subject to these caveats, however, the Court must make a PEO where it is satisfied that the proceedings are prohibitively expensive for the applicant.’ This provides a significant degree of certainty for public interest litigants seeking to raise public interest proceedings in this field.
Will this approach be replicated for PEOs across the board?
Chapter 58A does not affect the power of the court to make a similar order in any other proceedings. The making of PEOs in cases which are not covered by the Directive will continue to be governed by the Corner House principles set out above. Thus, it appears that, for all intents and purposes, there are presently two PEO regimes operating in the UK – one codified; the other reliant upon the discretion of the court.
Desirability of having two regimes for PEOs
The current arrangement is at odds with the single system suggested by the SCCR, but is largely consistent with the recommendation of the Taylor Review. The latter recommended:
- That power to apply for protective expenses order in Scotland should be available in all public interest cases;
- That the decision on whether to award a protective expenses order, and at what level, ought to be a matter for judicial discretion unless otherwise prescribed in Rules of Court for particular types of actions, and;
- That PEOs should be available in multi-party actions only where a public interest could be demonstrated.
Regardless as to whether this ultimately fits in either party’s recommendations, it is difficult to see how a two tier system of authorization squares with the underlying rationale for issuing such orders in the first place. Although the reasons why a codified scheme was introduced for environmental aspects is clear (compliance with the Aarhus Directive), the rationale for maintaining separate regimes is not. Indeed, there are no peculiarities of environmental law which necessitate its own separate regime for expense management. Problems of financing are no more acute in environmental cases as in non-environmental cases. The fundamental issues remain the same.
At present, there are no plans for codification of the law on PEO/PCOs in judicial review and statutory appeals generally. Given that the purpose of PEOs is to prevent fears of unpredictable litigation expenses from inhibiting public interest litigation, it is perhaps surprising that a rule based approach, as one which promotes certainty and consistency, has not yet been adopted across the board. If the values which PSOs seek to protect are to be maintained, adoption of such an approach appears to be both inevitable and desirable. For further comment on the divergence between judicial treatment of environmental and non-environmental PEOs, and general proposals for cost protection for public interest litigants, see Tom Mullen’s article ‘Protective Expenses Orders and Public Interest Litigation’ (Edinburgh Law Review, 2015).
Graeme Di Rollo & Joshua Hale
(Please note this article was written before the recent Inner House decision Gibson v Scottish Ministers  CSIH 10 was published earlier this month).
 –  UKSC 46,  1 AC 868
 –  UKSC 46, para.169
 –  UKSC 44, 2013 SC (UKSC) 67
 – Address to conference of the Australian National Environmental Law Association (1989), cited in R (Corner House Research) v Secretary of State for Trade and Industry  EWCA Civ 192,  1 WLR 2600, at para.31
 – Dyson, J’s judgment in R v Lord Chancellor, ex parte Child Poverty Action Group  WLR 347
 –  EWCA Civ 192,  1 WLR 2600
 –  1 WLR 2600, para. 74
 –  1 WLR 2600, para.74
 – Morgan and Baker v Hinton Organics (Wessex Ltd),  EWCA Civ 107,  2 P & CR 4 Weaver v London Quadrant Housing Trust,  EWCA Civ 235
 – The ‘Aarhus Convention’ – incorporated into UK law by virtue of the Public Participation Directive, inter alia.
 – Rule 58A.2(3)
 – Rule 58A.2(5)
 – Rule 58A.2(6)
 – Rule 58A.2(4)
 – 120-121, available at http://scotland.gov.uklAbout/Reveiw/taylor-review/Report