A Protective Expenses Order has been granted to Mr J Mark Gibson, owner of the Craigengillan Estate, in his judicial review challenge of the nearby Dersalloch wind farm.
This overturns the earlier decision to refuse the PEO, on the basis that he had not met the requisite tests when his assets as a whole (liquid or otherwise, and including his pension) were considered.
The Inner House confirmed that when determining whether court proceedings are prohibitively expensive for an applicant both a subjective and an objective test must be applied.
In Mr Gibson’s case, the subjective test had been misapplied. It is not a question of whether the petitioner is able to pay the legal expenses in question; it is whether it is reasonable in all the circumstances for him to do so.
While Mr Gibson had assets estimated to be worth in the region of £3 – £4 million, he would likely have required to sell part(s) of his 1000+ hectare estate to meet the other parties’ legal bills as his annual income was only around £18,000. This was held not to be reasonable in the circumstances, particularly as Mr Gibson had embarked upon his judicial review challenge in order to preserve the integrity and historical significance of his estate.
The PEO means that Mr Gibson’s liability will be capped at £5,000; without it he would have been facing legal bills in excess of £170,000 if his judicial review challenge is ultimately unsuccessful.
The decision sets a relatively high test for refusing a PEO given Mr Gibson’s overall assets, albeit his comparatively modest income and the issues surrounding any release of capital were undoubtedly key factors in the Inner House’s decision. It is clear that “what is reasonable” is strongly linked to what is practical and feasible, rather than being purely a numbers exercise.