Court Of Session Citation and commencement, etc. 1 1 This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (No. 4) (Protective Expenses Orders) 2015. 2 It comes into force on 11th January 2016. 3 A certified copy is to be inserted in the Books of Sederunt. Amendment of the Rules of the Court of Session 1994 2 1 The Rules of the Court of Session 1994 are amended in accordance with this paragraph. 2 For rule 58A.1 (protective expenses orders in environmental appeals and judicial reviews – application and interpretation) and rule 58A.2 (availability of protective expenses orders) substitute— Application and interpretation of this Chapter 58A.1 1 This Chapter applies to applications for protective expenses orders in— a an appeal under section 56 of the Freedom of Information (Scotland) Act 2002 as modified by regulation 17 of the Environmental Information (Scotland) Regulations 2004 ; b relevant proceedings which include a challenge to a decision, act or omission which is subject to, or said to be subject to, the provisions of Article 6 of the Aarhus Convention; c relevant proceedings which include a challenge to an act or omission on the grounds that it contravenes the law relating to the environment. 2 In this Chapter— “the Aarhus Convention” means the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25th June 1998; “protective expenses order” means an order which regulates the liability for expenses in the proceedings, including as to the future, of all or any of the parties to them; “the public” and “the public concerned” have the meanings assigned by Article 2 of the Aarhus Convention; “relevant proceedings” means— applications to the supervisory jurisdiction of the court, including applications under section 45(b) (specific performance of a statutory duty) of the Act of 1988; appeals under statute; proceedings are prohibitively expensive for an applicant for a protective expenses order if the applicant could not reasonably proceed with them in the absence of such an order. Appeals relating to requests for environmental information 58A.2 1 This rule applies to an application for a protective expenses order in proceedings mentioned in rule 58A.1(1)(a). 2 Where the person who requested the environmental information is a party to the appeal, that person may make an application for a protective expenses order. 3 Such an application must be made, except on cause shown— a where the applicant is the appellant, no later than is reasonably practicable after the applicant becomes aware that the appeal is defended; b where the applicant is the respondent, no later than the expiry of the period allowed for the lodging of answers. 4 Where the court is satisfied that the proceedings are prohibitively expensive for the applicant, it must make a protective expenses order. 5 The court may refuse to make a protective expenses order if it considers that the applicant has no real prospect of success. Public participation in decisions on specific environmental activities 58A.2A 1 This rule applies to an application for a protective expenses order in proceedings mentioned in rule 58A.1(1)(b). 2 The petitioner or the appellant may make an application for a protective expenses order. 3 Such an application must be made, except on cause shown, no later than is reasonably practicable after the applicant becomes aware that the petition or appeal is defended. 4 The court must make a protective expenses order where it is satisfied that— a the applicant is a member of the public concerned; b the applicant has a sufficient interest in the subject matter of the proceedings; and c the proceedings are prohibitively expensive for the applicant. 5 The court may refuse to make a protective expenses order if it considers that the applicant has no real prospect of success. Contravention of the law relating to the environment 58A.2B 1 This rule applies to an application for a protective expenses order in proceedings mentioned in rule 58A.1(1)(c). 2 The petitioner or the appellant may make an application for a protective expenses order. 3 Such an application must be made, except on cause shown, no later than is reasonably practicable after the applicant becomes aware that the petition or appeal is defended. 4 The court must make a protective expenses order where it is satisfied that— a the applicant is a member of the public; and b the proceedings are prohibitively expensive for the applicant. 5 The court may refuse to make a protective expenses order if it considers that the applicant has no real prospect of success. . 3 In rule 58A.3 (applications for protective expenses orders) , omit paragraph (2). 4 In rule 58A.4 (terms of protective expenses orders) , after paragraph (5) insert— 6 Where the applicant is the respondent in proceedings referred to in rule 58A.1(1)(a)— a paragraph (1) applies as if the reference to the applicant’s liability in expenses to the respondent was a reference to the applicant’s liability in expenses to the appellant; and b paragraph (3) applies as if the reference to the respondent’s liability in expenses to the applicant was a reference to the appellant’s liability in expenses to the applicant. 7 In paragraphs (1) and (3), “the respondent” means— a all parties that lodge answers in an application to the supervisory jurisdiction of the court; and b all respondents in an appeal under statute. . Saving provision 3 Paragraph 2 does not apply in relation to proceedings commenced before 11th January 2016. CJM SUTHERLAND Lord Justice Clerk I.P.D. Edinburgh 2nd December 2015