Last week the Court of Session took a step that may encourage community campaign groups: it granted the first ever Protective and Restricted Expenses Order in favour of Marco McGinty, a campaigner who is challenging the inclusion of a port and power station development at Hunterston as a national development in the National Planning Framework.
Protective and Restricted Costs Orders are aimed at ensuring campaigners like Mr McGinty 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. As knowledge of the new orders spreads, they are likely to become a standard part of the armoury of campaigners.
However, before campaigners get too excited, they should scrutinise the decision in this case. If he loses, McGinty, who is unemployed and whose challenge is funded by donations, “only” risks having to pay a maximum of £30,000 in costs to the Scottish Ministers (not to mention paying his own legal costs).
So, will Mr McGinty continue his challenge? I’d certainly be interested to see how it pans out – I’ve written elsewhere about his grounds.
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Having been involved in the very first application for a protective cost order in the M74 challenge I’m glad the bench has now seen fit to grant one. Seems our attempt was perhaps too premature although they have been used South of the border for some time.