Martin James Keatings Against The Advocate General for Scotland And Others

A pursuer’s motion for a protective expenses order in his case brought against the Advocate General for Scotland, the Lord Advocate and the Scottish Ministers has been refused.

The pursuer, Martin James Keatings, is bringing a court action seeking declarator from the Court that the Scottish Parliament has the power to legislate for holding a referendum on whether Scotland should be an independent country, without requiring the consent of the UK government or any further amendment of the Scotland Act 1998.

A protective expenses order (PEO) regulates the maximum liability for legal expenses of a court action in advance.  The pursuer argued that to enable him to access the court a PEO should be granted.  The pursuer produced a schedule prepared by law accountants which estimated the judicial expenses of the action, per party, at nearly £140,000.  He sought a PEO restricting expenses the pursuer might have to pay to the defenders to a total of £5,000, and capping expenses the defenders might have to pay the pursuer to £30,000 each (£90,000 together).  

The first defender, the Advocate General for Scotland, argued that a PEO should not be granted, although if it was, his cap should also be set at £5,000. He argued that the pursuer had raised over £43,000 to finance the action in under a month of crowdfunding in December 2019 and January 2020, with the expectation there would be further phases of crowdfunding.  The second and third defenders, the Lord Advocate and the Scottish Ministers, argued their cap should be set cumulatively at £30,000, as they were not being separately represented. 

The judge, Lady Poole, found some of the criteria, set out in common law for granting a PEO, were met.  The case (outlined above) satisfied the requirement that there was a real prospect of success, and raised a point of general public importance.  It was not objectively reasonable for the pursuer to be potentially liable for a sum as high as £195,000, the sum at which the court assessed the reasonable expenses for which the pursuer might be liable if he lost (including his own).

However, the Court was not satisfied that other criteria were met.  The pursuer had an indirect financial interest in the outcome of the case if the PEO was granted in the form sought. If he won, under the terms of the PEO requested he might become entitled to £90,000 in expenses, and there was no apparent mechanism to return sums to crowdfunders. 

The Court also did not consider the pursuer would as a matter of fact discontinue the action if a PEO was not granted. Lady Poole noted that the finding of the Court does not prevent the pursuer on carrying on with the action, and all matters raised remain for the court hearing the case to determine and consider.

The Court found the public interest did not require that the issues be resolved in these proceedings, an essential criterion for grant of a PEO.  The Court found that if significant responsibility for legal expense of an action is potentially to be transferred to the public purse and other parties, the public interest must require the issue of general importance raised to be resolved in that particular action. There were other ways to resolve the independence referendum issue raised in the action, and having regard to the legal tests which courts must apply to determine legislative competence, these proceedings were not the appropriate forum to resolve the issues raised. 

In the light of those findings the Court was not satisfied that it was fair and just to grant the pursuer’s motion for a PEO. 

The full opinion of the Court can be accessed via the Scottish Courts and Tribunals Service website (see link below) from 12 noon on 30 July 2020.

Summaries of Opinions provide the main findings, but do not form part of the reasons for the decision. The full judgment published on the Scottish Courts and Tribunals website is the only authoritative document.

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