Community council granted protected expenses order ahead of appeal against local authority decision

A community council has been granted a protected expenses order limiting its liability for the costs of a legal action challenging a decision of a local authority.

A judge in the Court of Session ruled that it would “fair and just” to limit the community council’s liability to £1,000 as they would not otherwise be able to afford to proceed with the litigation, and that the local authority’s liability should be to limited to £15,000.

The case involved an appeal by the first appellants Hillhead Community Council in terms of paragraph 35 of Schedule 9 to the Road Traffic Regulations Act 1984 against a decision of the respondents Glasgow Council City dated 9 July 2014 to make the Glasgow City Council (Hillhead) (Traffic Management and Parking Control) Order 2014.

Lord Bannatyne heard a motion moved by the first appellants for a protected expenses order.

The motion was moved at common law, as it was a matter of agreement between parties that chapter 58A of the Rules of the Court of Session were not relevant in the circumstances of this case.

It was further a matter of agreement between parties that the principles to be applied in considering whether such an order should be made are as laid out in the 2005 case of Regina (Corner House Research) v The Secretary of State for Trade and Industry.

A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent and to the amount of costs there are likely to be involved, it is fair and just to make the order; (v) and if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.

It was the first appellants’ position that both grounds of the appeal satisfied the first and second criteria in Corner.

The first ground of appeal was that the respondents had failed to consider all objections to the making of the order.

It was submitted that the respondents were obliged to follow the statutory scheme and consider all objections which had not been withdrawn by those making them.

However, the respondents wrote to those who had objected in terms of the rules and required the objectors to confirm in writing if they wished to “maintain” their objection.

This further procedure was “illegitimate” in terms of the relevant regulations, it was argued.

In any event, it was submitted that given that most objectors would be members of the public without legal advice, it was “disproportionate and unreasonable”.

The second ground of appeal was that the respondents had failed to have regard to the National Air Quality Strategy.

The judge ruled that a protective expenses order at common law was “justified” after being persuaded that both grounds of appeal satisfied the first and second criteria laid out in the Corner House case and had “a real prospect of success”.

In a written opinion, Lord Bannatyne said: “I am of the opinion that, given the whole financial circumstances of the appellants and the potential cost of litigation, without a protective expenses order, the first appellants could not afford to proceed with the litigation and that it would be reasonable for them not to proceed.

“I conclude that having regard to the first appellants’ financial circumstances including the sum raised to date for this action and their own legal expenses together with the general financial position of the respondents it would be fair and just to limit their liability and the expenses to the respondents to the figure of £1,000.

“I also conclude in the whole circumstances that it is appropriate to limit the respondents’ liability to the first appellants to the figure of £15,000.”

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