Scottish Court of Session Decisions

Petitioner:  Sir Crispin Agnew of Lochnaw, Bt, QC;  Gillespie Macandrew LLP

Respondent:  M McKay;  Brodies LLP

Interested Party:  J Findlay;  DLA Piper Scotland LLP

22 July 2014

[1]        Friends of Loch Etive (the petitioner) is a registered Scottish charitable incorporated organisation which has raised a petition for judicial review of a decision of Argyll and Bute Council granting planning permission to Dawnfresh Farming Ltd for a rainbow trout farm on Loch Etive.  I heard an opposed motion in which the petitioner sought a protective expenses order on the basis that otherwise the proceedings would be prohibitively expensive.  The order sought was in terms of rule 58A.4, namely the petitioner’s potential liability being capped at £5,000, and the Council’s liability to the petitioner at £30,000.  (If Dawnfresh enter the process as an interested party, the proposal was that there should be no expenses due to or by the petitioner or the interested party.)  The application was opposed by both the Council and Dawnfresh. 

[2]        I have decided to refuse the application.  My reasons are as follows.  It is clear that the charity was created by Mr Keith Macmillan, and is controlled and funded by him.  In his letter of objection to the fish farm he described himself as the owner of an estate on the shores of Loch Etive opposite the proposed development.  Since its commencement in May of last year, Mr Macmillan has given £70,000 to the petitioner.  The bulk of this has been spent on legal fees and the setting up of a website.  The three trustees, who are also the sole members of the petitioner, are Mr Macmillan, his daughter and an employee.  He decided to raise the proceedings for judicial review.  Thereafter donations were sought from those who have indicated support for the charity’s  aims and objects, which are focused on protection of the environment of Loch Etive and the surrounding area.

[3]        In support of the application, Sir Crispin Agnew of Lochnaw Bt QC submitted that all that matters is (1) that the petitioners are a non-governmental organisation promoting environmental protection within the meaning of rule 58A.2(2)(b), and (2) that at present it has only around £4,000 in its bank account.  The court has been given no information, by way of affidavit or otherwise, as to the resources of the three members of the petitioner, and most particularly none in respect of Mr Macmillan;  nor as to their future intentions in respect of funding the petitioner and the legal proceedings.  What is known and vouched is that since May of last year Mr Macmillan has donated £70,000 to the petitioner. 

[4]        In the whole circumstances I consider it unrealistic to focus only on the two factors stressed by Sir Crispin, particularly given Mr Macmillan’s role as dominus litis, or at least something akin to that.  (A dominus litis is a person in control of, and with an interest in the outcome of a litigation.)  Furthermore there is no information as to the resources which can realistically be expected from those 250 or so people who have indicated support for the petitioner, and whom I am told it is hoped will now take over the financing of the proceedings. 

[5]        I have gained considerable assistance from the full discussion of applications of this kind in the judgment of Lord Drummond Young in Carroll v Scottish Borders Council (OH) 2014 SLT 659.  Sir Crispin made reference to various cases, both in Europe and in London, which explain the purposes and reasons for orders of this kind.  He stressed that the environment “cannot protect itself”, so there should be no barriers placed in the way of environmental organisations such as the petitioner.  However, the court needs to be satisfied that the petitioner cannot reasonably proceed with the petition in the absence of a protective expenses order – see rule 58A.2(5).  I am not so satisfied, thus I shall refuse the application.  Were Sir Crispin correct in his submission that the court must limit consideration to the two factors he mentioned, it would always be open to an individual, whatever his resources, to obtain a protective expenses order by setting up a charitable organisation in which he controls its activities and membership.