Faculty puts forward idea of written PEO applications
AN easy-to-use, written application procedure should be considered for Protective Expenses Orders (PEOs), the Faculty believes.
New rules on PEOs have been drafted by the Scottish Civil Justice Council, and in a response to a consultation on those rules, the Faculty said that it endorsed in principle the rationale of a simplified procedure.
“In particular, the Faculty recognises that without a simplified or accelerated procedure there is the potential for considerable expense to be incurred at the outset of proceedings, which would be counter-productive to the effect of a PEO,” the response stated.
“However, the Faculty is of the view that further consideration should be given to the proposed procedure and thus the draft rules.”
In particular, the Faculty suggested that a structured, written application process should be considered, relying on standard forms which set down the amount of information to be provided to the court.
Clear guidance would be given to applicants, with provision for a limited duration oral hearing if issues were unaddressed following the paper application stage.
The Faculty further suggested that a designated judge should determine PEOs, to develop expertise and consistency, and that decisions should be published.
“If the rules are to provide for judicial decisions normally being made in chambers, it is important that the reasons for the decision are promulgated so that future potential litigants can be properly advised on the prospects of being awarded a PEO,” added the Faculty.
“Consideration should be given, generally, to adopting a procedure which is similar to that now applicable in Judicial Review petitions. For example, applying a test of standing and a procedure for determining permission (akin to such procedure in Judicial Review cases) may be appropriate in cases where a PEO is sought.”