McGinty & Anor, Re Judicial Review.

The Petitioner sought to judicially review a decision by Scottish ministers to construct a new power station. He used the site recreationally for bird-watching. He was unemployed, in receipt of social welfare and had been refused legal aid. A sum of money had been raised through donations; however it was unlikely to fund the litigation in its entirety. It was accepted by both parties to raise issues of genuine public importance and the Court granted a PCO capping costs recoverable by both parties. Bearing in mind that the Petitioner had no financial interest in the outcome of the case and no financial connection with the use of the site on which he bird-watched, the Court concluded that the Petitioner did not have a private interest such as to rule out the making of a protective costs order. In finding that the Petitioner would be reasonable in discontinuing the proceedings if the PCO was not granted, the Court looked to the fact that he was unemployed and had been refused legal aid, while the Respondents were Scottish ministers. The Court examined the scales of capping costs in PCOs and emphasised the importance of tailoring the PCO to meet the justice and fairness of the case.