Legal costs in High Court planning challenges

I was interested to see that the Scottish Government is considering the introduction of what we refer to in England as protective costs orders (called ‘protective expenses orders’ in Scotland) so as to limit the liability of a claimant to pay the costs of the other side in an unsuccessful challenge to a planning appeal decision or other planning decision. Such a proposal would clearly be in line with the Aarhus Convention and would also chime in with Jeremy Sullivan’s (as yet unimplemented) recommendations on costs in such cases in the English context.

The suggestion is that an unsuccessful claimant (I am using the English terminology) should be liable for no more than a maximum of £5,000 when paying the defendant’s costs (in England the defendant would be the Secretary of State for Communities and Local Government, or the local planning authority where it is their grant of planning permission which was challenged). On the other hand, the costs which could be recovered by a successful claimant would be capped at £30,000.

In putting forward these proposals for consultation, the Scottish Government is clearly aware of the risk of encouraging frivolous or vexatious claims, but it is difficult to see how these can in practice be discouraged when the financial penalty for failure will be so comparatively low, unless the requirement to obtain the Court’s permission as a preliminary to bringing a claim were to be imposed across the board.

This proposal on the part of the Scottish Government is a welcome attempt to promote access to justice, and it will be interesting to see what response they get to this consultation exercise. I suspect that Scottish local authorities may not be too happy about it, and there can be no guarantee that these proposals will be put into practice in their current form.

I am not aware of any similar proposals being brought forward in England or Wales, notwithstanding the recommendations made by Jeremy Sullivan, but if the Scots go ahead with this proposal, it will no doubt be watched with great interest south of the border, and if it is seen to be a successful way of ensuring access to justice in cases of this type, the government in Whitehall may then come under pressure to introduce a similar scheme in England. Off-hand, I am not clear as to whether the Welsh Government would be able to take a similar initiative on their own. Planning is a devolved function in Wales but, because a change of the sort proposed in Scotland would relate to the administration of justice (which is not a devolved function in Wales), the Welsh may have to await the pleasure of the Ministry of Justice, which is not known for its generosity of spirit, even under the avuncular superintendence of Ken Clarke.

The Scottish consultation exercise runs until 3 April, and we may not know until much later in the year whether the proposals which have been suggested will be put into effect, either in their current form or subject to modifications (such as, for example, a higher cap on the costs recoverable by the defendant authority).

Planning lawyers in England and Wales will certainly follow the Scottish experiment with keen interest, trying not to lick our lips too vigorously at the thought of a similar rule being introduced down here.

© MARTIN H GOODALL