Scotland’s first cap on legal costs, campaign success!

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High Court of Justiciary in Edinburgh, a photo by RonAlmog available under the Creative Commons Attribution 2.0 Generic license http://commons.wikimedia.org/wiki/File:High_Court_of_Justiciary.jpg

Planning Democracy have been supporting the legal challenge being made by Marco McGinty regarding the way in which plans for a new coal-fired power station at Hunterstion, Largs were approved by the Government.  We are pleased to announce that at the end of january the Court of Session granted the first ever Protective and Restricted Expenses Order in our favour.

Protective and Restricted Costs Orders are aimed at ensuring campaigners like Marco are not put off taking a legal challenge by the risk of having to pay unlimited expenses to the other side if they lose. They are available in a judicial review where there are issues of importance that the public has an interest in seeing resolved.

The order will cap the petitioner’s exposure to Ministers’ legal costs during this case at £30,000, should they eventually be unsuccessful. although we still argue this level is still far too high for a petitioner on a low income, such a Marco. The court’s decision nevertheless brings Scots law into line with English law, where the principle is well established and commonly used. The term Protected Costs Orders is used in England.

This is really important news for any campaigner.

Marco McGinty said that the court’s ruling was vital for him to carry on with the case:

“Ministers have sought to force this coal-fired power station through and ignore local concerns, but the court has made an important ruling and recognised that I am bringing this case in the public interest. I would not have been able to face the fear of unlimited costs, but we still have fundraising to do – and I therefore appeal for donations to Planning Democracy from anyone who wishes to see this polluting development challenged in court.”

Patrick Harvie MSP said:

“The planning system in Scotland was skewed against communities before devolution, and it still is. SNP and Labour Ministers alike have blocked any third party right of appeal, leaving Scotland’s courts as the only way to achieve environmental justice. Only the most wealthy have been able to go down this road, given that judicial review has always come with the risk of uncapped costs. A cap of any sort is therefore a very important step in the right direction, even if this remains a very substantial contribution to expect from a local resident on a low income.

“All too often, as with the coal plant proposed for Hunterston, Ministers have bent the rules to force through unsuitable projects and bypass community opposition, safe in the knowledge that local people will not be able to afford the legal costs of a challenge. This case puts this high-handed approach on notice, and our hope is that the result will be better governance, not more court cases. In the longer term, the interests of taxpayers and developers alike will be better served by a fairer and more efficient planning process, which should reduce still further the circumstances in which communities would need to go to court for basic justice.”

Please help us to raise funds for Marco who is unemployed and whose challenge and who still risks having to pay a maximum of £30,000 in costs to the Scottish Ministers (not to mention paying his own legal costs).


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