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Faculty backs written applications for protective expenses orders

19 June 2017

An easy-to-use, written application procedure should be considered for protective expenses orders (PEOs), the Faculty of Advocates stated today.

Faculty was responding to draft rules on PEOs issued for consultation by the Scottish Civil Justice Council. PEOs enable parties of limited means to bring environmental litigation proceedings that might otherwise be "prohibitively expensive", knowing that their liability for the other side's costs will be capped if they lose. The new rules are intended to regulate the procedure of applying for a PEO.

The advocates' governing body says it endorses in principle the rationale of a simplified procedure, recognising that "without a simplified or accelerated procedure there is the potential for considerable expense to be incurred at the outset of proceedings, which would be counter-productive to the effect of a PEO”.

However, it believes that further consideration should be given to the proposed procedure and therefore the draft rules.

In particular, a structured, written application process should be considered, relying on standard forms which set down the amount of information to be provided to the court, and a practice note. Together these would provide clear guidance to applicants. A limited duration oral hearing could take place if issues were unaddressed following the paper application stage.

Faculty further suggests that a designated judge should determine PEOs, to develop expertise and consistency, and that decisions should be published.

“If the rules are to provide for judicial decisions normally being made in chambers, it is important that the reasons for the decision are promulgated so that future potential litigants can be properly advised on the prospects of being awarded a PEO”, the submission argues. 

“Consideration should be given, generally, to adopting a procedure which is similar to that now applicable in Judicial Review petitions. For example, applying a test of standing and a procedure for determining permission (akin to such procedure in Judicial Review cases) may be appropriate in cases where a PEO is sought.”

 Click here to view the full response.

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