Protective expenses orders (PEOs) limit liability for expenses where a party acts to protect the environment or otherwise in the public interest.  Without them, the cost of challenging decisions harmful to the environment falls entirely on communities and individuals who can least afford it.  In two recent public interest judicial reviews, Shaun McPhee secured PEOs despite robust opposition.

In Mount Florida Community Trust v Glasgow City Council, Shaun appeared for a community group seeking to protect local open space from development of flats.  The Council argued the petition raised a purely planning matter, outside the scope of the PEO regime. Lord Harrower found the decision engaged the law relating to the environment, and granted a PEO.

In Ramsay v Scottish Ministers, Shaun appeared for a farmer opposing a large-scale forestry project on environmental grounds.  The respondents sought to defeat the PEO application by pointing to the value of the petitioner’s family farm.  Lady Ross found it was objectively unreasonable to treat those assets as available to meet the costs of litigation in the public interest, and granted a PEO.

Together, these cases offer useful guidance: the environmental scope of the PEO regime will not be narrowed by procedural characterisation, and any financial assessment must reflect realistic access to funds with the public interest properly taken into account.

Shaun was instructed in both cases by Ben Christman and Kate Smith of the Environmental Rights Centre for Scotland, with Laura McDonagh of Drummond Miller as Edinburgh agent.