[2016] CSIH 31


Lord President

Lady Paton

Lord Menzies




in the reclaiming motion


Petitioner and Reclaimer;






Interested Parties:

Act: Findlay, Burnet; Morton Fraser LLP

Alt: M V Ross; Scottish Government Legal Department

Interested Parties: Armstrong QC, A Sutherland; MacRoberts LLP


15 April 2016

[1]        The petitioner seeks judicial review of a decision of the respondents not to hold a Public Inquiry and to grant consent under section 36 of the Electricity Act 1989, and deemed planning permission under section 57(2) of the Town and Country Planning (Scotland) Act 1997, to the interested party for the construction and operation of Dersalloch Wind Farm, which is located at some kilometres distance from the petitioner’s property near Dalmellington.  He seeks declarator that the decision was ultra vires, proceeded under error and was unreasonable.

[2]        On 4 March 2015, the Lord Ordinary heard the petitioner’s motion for a Protective Expenses Order in terms of Rule of Court 58A.3.  The petitioner sought to have his liability in expenses to the respondents and the interested party limited to a cumulative total of £5,000 and the liability of the respondents and the interested party in potential expenses to the petitioner limited to £30,000.  The Lord Ordinary refused the petitioner’s motion by interlocutor dated 14 April 2015 ([2015] CSOH 41).  He was not satisfied that the petitioner had made out that he could not reasonably proceed in the absence of a PEO.  

[3]        By interlocutor dated 10 February 2016 ([2016] CSIH 10), an Extra Division allowed the petitioner’s reclaiming motion.  The test for a PEO encompassed both subjective and objective elements.  It was not simply a question of the petitioner’s ability to pay, but whether it was reasonable, in all the circumstances, that he should be required to pay.  It was held that the Lord Ordinary had failed to consider the objective element and had misunderstood the subjective element in so far as he addressed only ability to pay as distinct from reasonableness.  On a reconsideration of the motion, the Division made a PEO in the terms originally sought.

[4]        The current motion is: first, to find the respondents and the interested party jointly and severally liable in expenses to the petitioner; secondly, to award the petitioner an additional fee under heads (a), (b), (c), (e), and (g) of Rule of Court 42.14; and, thirdly, to have the expenses made payable separately from the sums in the PEO.

[5]        So far as expenses generally were concerned, it was submitted that the petitioner had been successful in the reclaiming motion and there was no basis for any modification. 

[6]        In relation to the additional fee, under head (a) it was contended that the motion had involved points of complexity and novelty, in particular the interpretation of “prohibitively expensive” in RCS 58A.1.  It was the first time the terms of the rule had been considered by the Inner House.  On (b) two affidavits required to be prepared, letters from the petitioner’s bank obtained, and detailed consideration given to the petitioner’s accounts and tax returns.  All of this required the skill, time and labour and specialised knowledge of the solicitor.  Pension advisers had been instructed on the ability of the petitioner to obtain funds from his scheme.  Under (c), reference was made to the number of documents which had been ingathered for the hearing in the Outer House from the petitioner’s bank, pension advisers and others.  Under (e), the importance of the cause was such that, had a PEO not been granted, the petitioner would have required to abandon the petition.  Finally, under (g), the petitioner had provided appropriate evidence of his financial position before the Lord Ordinary in an attempt to limit the scope of the oral hearing.

[7]        On the issue of the PEO not encompassing such expenses as might be found in respect of the application and the reclaiming motion, it was contended, under reference to the Civil Procedure Rules in England and Wales (45.44(3)(b)) and the Aarhus Convention, that it was appropriate that the expenses found should not be included in the limits determined.

[8]        The interested party resisted the motion for expenses in general, in so far as these related to the Outer House proceedings on the basis that the ultimately successful arguments presented to the Inner House had not been adequately, or perhaps at all, canvassed before the Lord Ordinary.  The respondents and the interested party maintained that an additional fee was not warranted.  The court had before it the principles laid down by the Court of Justice of the European Union and the United Kingdom Supreme Court (R (Edwards) v Environment Agency (No. 2) [2013] 1 WLR 2914, [2014] 1 WLR 55).  The work carried out by the petitioner’s solicitor had been routine.  Any difficulty or complexity had been handled by counsel.  Information in relation to the petitioner’s financial position had been required in terms of the rules.  The affidavits and letters lodged were short. There had been very little dispute about the information provided in relation to the value of the petitioner’s estate, the extent of his pension entitlement and his capacity to withdraw funds.  The issues for consideration had therefore been relatively narrow, in so far as relating to the petitioner’s financial position and the expenses of the proceedings.  There was nothing in the case which took it beyond the importance of any case to a litigant.  No steps had been taken with a view to settling the cause, limiting the matters in dispute or narrowing the scope of the hearing.  The Opinion of the Extra Division (supra, at para [71]) had made it clear that the scope and nature of hearings on matters of this nature should be limited in terms of both time and material.

[9]        Expenses in relation to the motion should not, it was submitted, be excluded from the terms of the PEO.  There was no specific provision to do so in the rules and the petitioner could, in any event, have moved for a modification of the order sought at the time of the hearing on the Summar Roll.

[10]      There is no basis for any modification of the general award of expenses, which follows success, in favour of the petitioner.  The fact that a particular point may not have been fully raised, or raised at all, in the Outer House is, in the context of this case, of little moment.  The petitioner was ultimately entirely successful in obtaining his PEO.  His motion was opposed by the respondents and the interested party and he is entitled to an award of expenses against them.

[11]      So far as an additional fee is concerned, the application was one of a relatively straightforward nature for a PEO, the principles in relation to which have been set out by the UK Supreme Court and the Court of Justice of the European Union.  The fact that parties elected to lodge substantial documentation, and to analyse it in depth, does not carry with it an implication that the documents, or the analysis, were reasonably required for the resolution of the issue.  In due course it will of course be a matter for the Auditor to look carefully at the particular fees claimed and to come to a determination on their reasonableness.  Similarly, the elaboration of the proceedings here, set out in lengthy notes and submissions, does not carry with it an implication that these were reasonably required.  In short, the court is not satisfied that grounds for an additional fee have been made out in relation to any of the heads claimed.  Again, the recoverable fees may be a matter for the Auditor to determine if the parties proceed to taxation.  In so doing, the Auditor will no doubt bear in mind what the Extra Division has said in paragraph [71] of the Opinion, and which this court endorses, to the effect that an application, such as the present, ought to be dealt with expeditiously, upon limited material in a relatively short motion roll hearing.

[12]      Finally, in so far as the expenses relative to the figures in the PEO, having regard to the principles of the Aarhus Convention, the expenses of the reclaiming motion and the Outer House should not be encompassed in the figures determined.  The court will accordingly order that the ceiling of £30,000, referred to in the interlocutor, shall not include the expenses of obtaining the PEO.