Protective Expenses Orders and Judicial Review

21 January 2010

The first protective expenses order to be granted by a Scottish court has been made in the case of McGinty v Scottish Ministers 2010 CSOH 5. 

A protective expenses order is an order regulating liability for expenses made in advance of any substantive hearing.  The idea is that the liability of petitioners for expenses is restricted, and they are aware of their maximum exposure for expenses before litigating the merits of an action.  The grant of a protective expenses order is in the discretion of the court, as is the precise form of the order.  There are various criteria that require to be satisfied before the court can make the order, which are:  (i) The issues raised are of general public importance;  (ii) the public interest requires that those issues should be resolved;  (iii) the applicant has no private interest in the outcome of the case;  (iv) having regard to the financial resources of the applicant and the respondent and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.

In McGinty, a case involving a challenge to the legality of Hunterston being designated as a national development in the National Planning Framework (2), Lady Dorrian found the criteria for making a protective expenses order were met.  She made an order that if the Scottish Ministers were to succeed, the petitioner would only be responsible for the Scottish Ministers' legal expenses up to a cap of £30,000.  She also capped the expenses which would be recoverable by the petitioner from the Scottish Ministers, if the petitioner was successful, to the expenses of a solicitor and one senior counsel acting without a junior.

David Johnston QC and Anna Poole of Axiom Advocates acted for the Scottish Ministers.

(http://www.scotcourts.gov.uk/opinions/2010CSOH5.html).