Amendments have been made to the 2018 Protective Expenses Order Rules

(By the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Protective Expenses Orders) 2024)

The Court of Session has signed an amending rules instrument proposed by the Council, which has now been laid with the Scottish Parliament and published online at www.legislation.gov.uk. The amendments made will take legal effect from 1 October 2024.

The Council consulted on the Protective Expenses Order (PEO) rules in 2017, with the key changes then enacted as the 2018 PEO Rules. These latest amendments further support environmental actions being raised and implement a further three suggestions made by respondents to that 2017 consultation which are:

• That a PEO should carry over to proceedings in the Inner House as standard, regardless of whether the petitioner or respondent is appealing the original decision;
• That a provision should be added to explicitly provide for the confidentiality of all financial information provided by the petitioner or respondent; and
• That a provision should be added so that there is improved clarity on the potential exposure to an interveners expenses.
  

The Council continues to assess what more can be done via rules in support of environmental actions in the sheriff court and will consult again when appropriate to do so.  Work also continues on the plan of action to address the remaining Aarhus concerns raised, where they would result in an amendment to court rules.

Scottish Civil Justice Council
June 2024

Notes for editors:

1. The content of the 2017 consultation is available online via the consultations page of the Councils website.
   
2. The 2018 Protective Expenses Orders Rules (SSI 2018/348) are available online at legislation.gov.uk.
   
3. This latest amending rules instrument (SSI 2024/196) is available online at legislation.gov.uk.
   
4. The Aarhus concerns for Scotland are at pages 12 to 15 of the: “Report of the Compliance Committee on compliance by the United Kingdom of Great Britain and Northern Ireland – Part I”. 

   https://unece.org/sites/default/files/2024-03/ECE_MP.PP_2021_59_E.pdf

5. For those seeking further detail on how these latest rule changes will work in practice:

Cost protection on appeal – The 2018 PEO rules had provided for a differential approach.  If the respondent reclaimed the cost protection in a PEO carried forward to any appeal however if a decision was reclaimed at the instance of the petitioner a second PEO application would be required.

To improve fairness when using this procedure, the two small edits made have reworded rule 58A.8 to support reclaiming being progressed in the same manner regardless of whether it is the petitioner or the respondent that is appealing the original decision.

Confidentiality of all financial information provided - inserting paragraph 5 into rule 58A.5l prompts a petitioner to request confidentiality when they lodge a motion requesting a PEO.  In response the court will specify that requirement for confidentiality in an interlocutor, allowing the sanction of contempt to be automatically applied to any failure to maintain confidentiality.  The majority of PEO applications are dealt with on the papers so inserting paragraph 3 into rule 58A.6 means that if a hearing is fixed following a request for confidentiality it would default to an “in chambers” hearing. 

The implied exposure to an interveners expenses - the purpose of an intervener’s written submission is to assist the court, without unreasonably delaying proceedings. Those two factors influence the discretion exercised when deciding reasonable expenses, and the default is that orders are not normally made for or against an intervener.  Inserting section 58A.10 makes that default explicit, conveying that the perceived exposure to an interveners costs is likely to be nil providing a party acts reasonably.  If they act unreasonably some risk remains as the court may use expenses as a sanction.