The Scottish Civil Justice Council has today issued a further public consultation on proposals that would allow a party to request costs protection in all environmental cases. 

Normally when someone loses a civil court case the losing party is found liable for the other sides’ expenses, subject to limits on what can be claimed. In certain environmental cases the court may, in the interests of justice, grant an Environmental PEO to limit the financial risk for that party. In practice that normally means the maximum that party must pay in expenses is capped at £5,000 if they were to lose their case. 

Under the existing procedure such orders can only be sought in ‘judicial review’ proceedings and ‘statutory appeals’ within the Court of Session.  One of the proposals in this consultation is to extend the ability to seek such orders to civil actions raised in any Scottish court that challenge an act or omission regarding the law relating to the environment (except for actions under group procedure). 

The Council in particular welcomes feedback from any individuals or organisations with an interested in environmental litigation, including those involved as a party in an environmental case where a motion for costs protection was made or considered by the court, including where such an order has limited the ability of the successful party to recover their full costs.

Secretariat to the Scottish Civil Justice Council

Consultation documents can be viewed here - Extension of Protective Expenses Orders 2026 

Notes to Editors: 

1. The current Protective Expenses Order Rules (SSI 2018/348 and SSI 2024/196) are available online via the legislation.gov.uk website
    
2. The Aarhus Strategy paper and the minutes of the December 2025 SCJC meeting can be viewed online via the meetings page on the Councils website:

   https://www.scottishciviljusticecouncil.gov.uk/council/meetings 

3. All papers from the previous 2025 Public Consultation can be viewed online via the consultations page on the Councils website:

   https://www.scottishciviljusticecouncil.gov.uk/consultations/scjc-consultations/extending-the-availability-of-protective-expenses-orders 

4. The decisions taken in response to this consultation will assist the Aarhus Convention Compliance Committee (ACCC) in monitoring compliance with the Aarhus Convention:

https://unece.org/environment-policy/public-participation/aarhus-convention/introduction