The fourth part of this series of blogs on practical aspects of judicial review considers the time limit for raising judicial review proceedings.

The fourth part of this series of blogs on practical aspects of judicial review considers the time limit for raising judicial review proceedings.

 

Part 4: Time Limits and Delay

 

Prior to the amendments made by the Courts Reform (Scotland) Act 2014 there had been no specific time constraints within which judicial review proceedings required to be raised.  Section 27A(1) of the Court of Session Act 1988 introduced a requirement that a judicial review application must be made before the end of (a) the period of 3 months beginning with the date on which the grounds giving rise to the application first arise, or (b) such longer period as the Court considers equitable having regard to all the circumstances.  This over-rides any other legislation which might suggest that a longer time-period applies (such as an application founding on a breach of the Human Rights Act 1998, where (again, subject to equitable considerations) there is generally a one-year time limit).  It also needs to be noted that where a shorter time limit is provided for by primary or secondary legislation, then it is that shorter time limit which will apply (Section 27A(2), CSA 1988).

 

In order to determine whether the time limit under Section 27A CSA 1988 has been met, the relevant date to count back from is the date of lodging of the petition (Rule 58.3(2), Rules of the Court of Session 1994).  This is the date when it is physically accepted by the Petition Department without any qualification, i.e., it is not refused or handed back or stated as not having been accepted for lodging, Tor Corporate AS v Sinopec Group Star Petroleum Corporation Ltd.  In order to achieve this it will be necessary to have the necessary productions and process papers, and either pay the lodgement fee or have an account, For evidential purposes it should be date stamped when it is lodged.

 

A plea-in-law which was frequently taken by Respondents at common law was that the Petitioner had delayed in raising proceedings and had accordingly waived their right to complain, or were barred by mora, taciturnity and acquiescence.  The merits of such an argument will turn on the particular facts.  An argument frequently stated by respondents is that allowing proceedings to be brought late is detrimental to the interests of good administration.  This can be a circular argument since it sometimes means simply that the proceedings have been raised late and the respondent wishes to found on that delay in order to avoid being subject to a challenge.  The Scottish case law on mora, taciturnity and acquiescence is likely to remain relevant to future cases where the court is being asked to exercise an equitable discretion.  The focus will be on whether there is a good reason for not bringing judicial review proceedings earlier, and whether any prejudice would be suffered by the respondent or third parties.  Portobello Park Action Group Association v City of Edinburgh Council, is a helpful authority for petitioners in recognising that petitioners may require time to raise funds to bring a challenge.  In England it is clear that even if there is a good reason for a delay in bringing judicial review proceedings “promptly … and in any event not later than three months” after the grounds first arose, permission can still be refused on the grounds of hardship or prejudice.

 

Legislative provisions

Court of Session Act 1988, Section 27A

Human Rights Act 1988, Section 7(5)

Act of Sederunt (Rules of the Court of Session 1994) 1994, Schedule 2, Chapter 58.3(2) (as revised with effect from 22 September 2015)

 

Leading cases

London & Clydeside Estates Ltd v Aberdeen District Council, 1980 SC (HL) 1

Hanlon v Traffic Commissioner, 1988 SLT 802

R v Dairy Produce Quota Tribunal ex. P Caswell, [1990] 2 AC 738

Perfect Swivel Ltd v Dundee District Licensing Board (No.2), 1993 SLT 112

Somerville v Scottish Ministers, [2006] CSIH 52; 2007 SC 140; 2007 SLT 96

Ingle v Ingle's Trustee, 1997 SLT 160

Tor Corporate AS v Sinopec Group Star Petroleum Corporation Ltd, 2008 SC 303

Portobello Park Action Group Association v City of Edinburgh Council, 2013 SC 184

Hendrick v Chief Constable Strathclyde Police, 2014 SC 551