Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Protective Expenses Orders) 2018

EXPLANATORY NOTE

(This note is not part of the Act of Sederunt)

This Act of Sederunt substitutes a new Chapter 58A of the Rules of the Court of Session 1994 and makes a related amendment to rule 38.16 thereof. The rules in Chapter 58A make provision for the granting of protective expenses orders in certain proceedings relating to the environment.

New rule 58A.1 contains a new definition of when proceedings in respect of which a protective expenses order is sought are to be considered as “prohibitively expensive” to the applicant seeking protection.

New rules 58A.2 to 58A.4 make provision for who and by when applications must be made in different types of proceeding and the situations when the court must make a protective expenses order.

New rule 58A.5 provides that an application must be made by motion and prescribes what must accompany it. Where a party wishes to oppose the application they must do so by lodging a notice of opposition accompanied by a statement setting out the grounds for opposition and any documents or other material on which they seek to rely.

New rule 58A.6 creates a new process for determination of applications. Unless the judge otherwise directs, the application will be determined by the judge in chambers without the need for parties to appear.

New rule 58A.7 provides for the limits on liability for expenses and for them to be lifted or lowered on cause shown.

New rule 58A.8 makes provision in respect of protective expenses orders in appeals.

New rule 58A.9 makes provision so that, other than where exceptional cause is shown, the liability for expenses of an applicant who is both unsuccessful and found liable for the expenses of the application is limited to £500.

Paragraph 3 is a saving provision, the effect of which is that the amendments made by this Act of Sederunt do not apply to proceedings commenced before 10th December 2018.