News

Terra Firma members successful in first Scottish protective expenses order case

Tuesday 9th February 2010

The first protective expenses order to be granted by a Scottish court has been made in the case of McGinty v Scottish Ministers [2010] CSOH 5, with Terra Firma members, Ralph Smith QC and Alasdair Burnet, appearing for the petitioner. 

This case is a petition for judicial review of Scottish Ministers’ adoption of the National Planning Framework 2. It is in respect of the designation as a National Development of a new coal fired power station at Hunterston. The issue is whether the public consultation process was sufficient to comply with certain statutory requirements and requirements in European law. 

The court has made a protective order for expenses in favour of the petitioner. This is an order which, in the event the petition fails, sets in advance the maximum level of expenses for which the petitioner could be liable. It is the first such order to have been granted in Scotland. The order is based on a recognition that it is in public interest for the issue to be decided. It is appropriate where the means of the petitioner are such as he would otherwise be unable to litigate with the risk of an adverse and high award of expenses being made against him at the conclusion of the case. 

The order is similar to a protective costs order in England. It is anticipated that there will be increasing use of McGinty Orders in Scotland in public law cases.

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