This is the first of a series of posts looking at practical aspects of judicial review. The Parts which follow look at the preliminary issues that have to be considered before raising judicial review proceedings, then the drafting of a petition itself, followed by the judicial review procedure once it reaches the Court of Session, and finally the actual presentation of the case in court. Each Part consists of a brief discussion of the topic, a note of the main legislative provisions applicable, and leading cases.

Introduction

This is the first of a series of posts looking at practical aspects of judicial review.  These posts do not discuss the grounds on which judicial review proceedings might be raised (for which, generally, see Council of Civil Service Unions v Minister for the Civil Service, 1985 AC 374 and Clyde and Edwards, Judicial Review, SULI (2000)).

When considering whether or not to bring judicial review proceedings, or when defending such proceedings, it is necessary to know not only the substantive law related to the issue which is being reviewed, it is also necessary to have an understanding of the underlying practical aspects of judicial review procedure which might make the difference between ultimate success and a case going off the rails.  The Parts which follow look at the preliminary issues that have to be considered before raising judicial review proceedings, then the drafting of a petition itself, followed by the judicial review procedure once it reaches the Court of Session, and finally the actual presentation of the case in court.  Each Part consists of a brief discussion of the topic, a note of the main legislative provisions applicable, and leading cases.

 

Part 1: What is judicial review, who can be reviewed and when?

Judicial review is the name given to the procedures and remedies available for challenging administrative actions, decisions, or failures to act or decide, on the part of public authorities and other persons with delegated decision making powers.  The following non-exhaustive list contains bodies and persons which have been held to be subject to judicial review proceedings:

UK Government Ministers
The Scottish Ministers
The Scottish Parliament
Local Authorities
Voluntary associations (disciplinary proceedings)
Arbitrators and adjudicators
Sheriff Court (administrative law decision where no right of appeal; refusal to grant legal aid in children’s hearing)
Tribunals (where no right of appeal)
Trustees of a public trust
Chief Constables
Political parties
Regulatory and administrative bodies and organisations (e.g., Civil Aviation Authority, Scottish Legal Aid Board, United Kingdom Atomic Energy Authority, Law Society of Scotland, General Dental Council, broadcasting authorities, Scottish Football Association)
Universities
Churches

Not all persons who might be liable to judicial review proceedings will be subject to judicial review if the subject matter of the proceedings do not raise a public law element which falls within the scope of the court’s supervisory jurisdiction, e.g., disciplinary proceedings by an employer.  Similarly, in seeking remedies in respect of certain wrongs, judicial review would be an inappropriate form of action, e.g., common law and Human Rights Act claims for damages where no corrective remedy is sought.  Examples of bodies in circumstances where judicial review has been held not to be the correct procedural course are:

Health Boards / NHS Trust (employment dispute)
Local authority (employment dispute)
Chief Constable (damages for assault and breaches of human rights) 

Judicial review will not be available if there is an alternative procedure available which has not been used (discussed further in Part 5).  Earlier Scottish cases concerning distinctions between intra vires errors of law (which could not be subject to judicial review) and ultra vires errors of law (which could be reviewable) have now been over-ruled by the Supreme Court in Eba v Advocate General.

The remedies available are the usual remedies which might be sought in a civil action – e.g., declarator, reduction, suspension, interdict, specific implement or performance, damages.  It used to be thought that it was not possible to obtain an order for interdict or for specific performance of a statutory duty against the Crown in judicial review proceedings, but that has changed since Davidson v Scottish Ministers (remedies are discussed further in Part 10), in which it was held that judicial review proceedings are not civil proceedings against the Crown for the purpose of Section 21 of the Crown Proceedings Act 1947.

 

Legislative provisions

Crown Proceedings Act 1947, Section 21

Court of Session Act 1988, Sections 27A – 27D, 45(b)

Act of Sederunt (Rules of the Court of Session 1994) 1994, Schedule 2, Chapter 58 (as revised with effect from 22 September 2015) and Chapter 58A

Practice Note No. 1 of 2012

 

Leading cases

D & J Nicol v Dundee Harbour Trustees, 1915 SC (HL) 7

Barrs v British Wool Marketing Board, 1957 SC 72

St Johnstone Football Club Ltd v Scottish Football Association Ltd, 1965 SLT 171

Brown v Hamilton District Court, 1983 SC (HL) 1

Tehrani v Argyll and Clyde Health Board (No.2), 1989 SC 342

West v Secretary of State for Scotland, 1992 SC 385

Naik v University of Stirling, 1994 SLT 449

Blair v Lochaber District Council, 1995 SLT 407

Brown v Executive Committee of Edinburgh Labour Party, 1995 SLT 985

Bell v Fiddes, 1996 SLT 51

Milton v Argyll and Clyde Health Board, 1997 SLT 565

Rooney v Chief Constable Strathclyde, 1997 SLT 1261

Vaughan Engineering Ltd v Hinkins & Frewin Ltd, 2003 SLT 428

Davidson v Scottish Ministers, 2006 SC (HL) 41

Lutton v General Dental Council, 2011 SLT 671

Eba v Advocate General, 2012 SC (UKSC) 1

AXA General Insurance Company Ltd v Lord Advocate, 2012 SC (UKSC) 122

Ruddy v Chief Constable of Strathclyde, 2013 SC (UKSC) 126

Ashley v Scottish Football Association Ltd, [2016] CSOH 78