Estate owner who was awarded protective expenses order for wind farm challenge fails in bid for ‘additional fee’

Judges in the Inner House of the Court of Session refused the motion after ruling that there was “no basis” for any modification of the general award of expenses in favour of the petitioner, adding that they were not satisfied that he had made out grounds for an additional fee.

The Lord President, Lord Carloway, sitting with Lady Paton and Lord Menzies, heard that the petitioner J Mark Gibson was seeking judicial review of a decision of the respondents, the Scottish Ministers, not to hold a public inquiry and to grant consent under section 36 of the Electricity Act 1989, and deemed planning permission under section 57(2) of the Town and Country Planning (Scotland) Act 1997, to the interested party Scottish Power Renewables for the construction and operation of the Dersalloch Wind Farm approximately 4.2km from the petitioner’s property at Craigengillan near Dalmellington, on the grounds that decision was “ultra vires, proceeded under error and was unreasonable”.

In April 2015 the Lord Ordinary refused the petitioner’s motion in terms of Rule of Court 58A.3 to have his liability in expenses to the respondents and the interested party limited to a cumulative total of £5,000 and the liability of the respondents and the interested party in potential expenses to the petitioner limited to £30,000, after ruling that the petitioner had made out that he could not reasonably proceed in the absence of a Protective Expenses Order (PEO).

But in February 2016 the Inner House allowed the petitioner’s reclaiming motion and made a PEO in the terms originally sought, after observing that the test for a PEO encompassed both subjective and objective elements and it was not simply a question of the petitioner’s ability to pay, but whether it was reasonable, in all the circumstances, that he should be required to pay.

It was held that the Lord Ordinary had failed to consider the objective element and had misunderstood the subjective element in so far as he addressed only ability to pay as distinct from reasonableness.

The petitioner subsequently lodged a further motion: first, to find the respondents and the interested party jointly and severally liable in expenses to the petitioner; secondly, to award the petitioner an additional fee under heads (a), (b), (c), (e), and (g) of Rule of Court 42.14; and, thirdly, to have the expenses made payable separately from the sums in the PEO.

In relation to the additional fee, under head (a) it was contended that the motion had involved points of complexity and novelty, in particular the interpretation of “prohibitively expensive” in RCS 58A.1. It was the first time the terms of the rule had been considered by the Inner House.

On (b) two affidavits required to be prepared, letters from the petitioner’s bank obtained, and detailed consideration given to the petitioner’s accounts and tax returns - all of which required the skill, time and labour and specialised knowledge of the solicitor.

Under (c), reference was made to the number of documents which had been ingathered for the hearing in the Outer House from the petitioner’s bank, pension advisers and others.

Under (e), the importance of the cause was such that, had a PEO not been granted, the petitioner would have required to abandon the petition.

Finally, under (g), the petitioner had provided appropriate evidence of his financial position before the Lord Ordinary in an attempt to limit the scope of the oral hearing.

On the issue of the PEO not encompassing such expenses as might be found in respect of the application and the reclaiming motion, it was contended, under reference to the Civil Procedure Rules in England and Wales (45.44(3)(b)) and the Aarhus Convention, that it was appropriate that the expenses found should not be included in the limits determined.

The interested party resisted the motion for expenses in general, in so far as these related to the Outer House proceedings on the basis that the ultimately successful arguments presented to the Inner House had not been canvassed before the Lord Ordinary.

Both the respondents and the interested party maintained that an additional fee was “not warranted”.

Expenses in relation to the motion should not, it was submitted, be excluded from the terms of the PEO, as there was no specific provision to do so in the rules.

Delivering the opinion of the court, the Lord President said: “The fact that a particular point may not have been fully raised, or raised at all, in the Outer House is, in the context of this case, of little moment. The petitioner was ultimately entirely successful in obtaining his PEO. His motion was opposed by the respondents and the interested party and he is entitled to an award of expenses against them.

“So far as an additional fee is concerned, the application was one of a relatively straightforward nature for a PEO, the principles in relation to which have been set out by the UK Supreme Court and the Court of Justice of the European Union. The fact that parties elected to lodge substantial documentation, and to analyse it in depth, does not carry with it an implication that the documents, or the analysis, were reasonably required for the resolution of the issue. In due course it will of course be a matter for the Auditor to look carefully at the particular fees claimed and to come to a determination on their reasonableness.

“Similarly, the elaboration of the proceedings here, set out in lengthy notes and submissions, does not carry with it an implication that these were reasonably required. In short, the court is not satisfied that grounds for an additional fee have been made out in relation to any of the heads claimed.

“Again, the recoverable fees may be a matter for the Auditor to determine if the parties proceed to taxation. In so doing, the Auditor will no doubt bear in mind what the Extra Division has said in paragraph of the Opinion, and which this court endorses, to the effect that an application, such as the present, ought to be dealt with expeditiously, upon limited material in a relatively short motion roll hearing.”

“Finally,” Lord Carloway added, “in so far as the expenses relative to the figures in the PEO, having regard to the principles of the Aarhus Convention, the expenses of the reclaiming motion and the Outer House should not be encompassed in the figures determined. The court will accordingly order that the ceiling of £30,000, referred to in the interlocutor, shall not include the expenses of obtaining the PEO.”