Planning Challenges - An Uphill Struggle

The decision of Lord Brailsford in Marco McGinty v Scottish Ministers [2011] CSOH163 has caused considering press comment. It will be interesting to see whether or not the case is appealed.

Mr McGinty was the beneficiary of a protective costs order. This was the second case to come before the Scottish Courts recently where the petitioner has the benefit of such an order but had been unsuccessful. Clearly the fact that such as order is made is no guarantee of success. The other case (Challenges & European Law) is under appeal to the Inner House of the Court of Session with a hearing due to take place in December 2011.

In the McGinty case, Lord Brailsford was clearly troubled by the fact that preliminary pleas were not dealt with before a substantive hearing on the merits. Preliminary pleas under Scots Law are essentially legal issues (capable of being dealt with in isolation) which may be determinative of a matter, thereby avoiding the need for a full hearing. In this case the preliminary pleas were to the effect that Mr McGinty had no proper title or interest to bring the action and separately that the right to bring the action had been lost by delay (a plea more properly known under Scots Law as mora, taciturnity and acquiescence). As will be seen below, Lord Brailsford upheld both of these pleas so not only did Mr McGinty lose on the merits, Lord Brailsford was of the view that the delay in bringing the action was a bar to the action succeeding and separately Mr McGinty had insufficient title and interest to bring the action.

Counsel for both parties at the hearing before Lord Brailsford wanted there to be a full hearing on all aspects of the case rather than a hearing limited to these preliminary pleas. The approach of Counsel appears to have been different however. Counsel for Mr McGinty suggested that the arguments in relation to the preliminary pleas could only properly be seen in the context of the wider issues. Counsel for the Scottish Government appeared to have accepted that certain issues in respect of the preliminary pleas could be dealt with in isolation but nonetheless felt it appropriate to go ahead with the full hearing.

Lord Brailsford was clearly troubled by this with reference to unnecessary waste of expense and use of court time. Expense of course is a particularly relevant consideration where the costs of Mr McGinty had been capped with a consequence that what the Scottish Government (as the successful party) can...