This is the fifth of a series of blogs looking at practical aspects of judicial review practice and procedure. This blog is about circumstances in which judicial review may be the only remedy available, but also the many situations where there can be a right of review or appeal which has to be used before judicial review can be brought, or instead of judicial review.

This is the fifth of a series of blogs looking at practical aspects of judicial review practice and procedure.  This blog is about circumstances in which judicial review may be the only remedy available, but also the many situations where there can be a right of review or appeal which has to be used before judicial review can be brought, or instead of judicial review.

 

Part 5: Is there an alternative procedure available?

Would judicial review be the appropriate procedure to challenge the decision?  As a matter of general principle, it has been repeatedly held that where there is a statutory right of appeal or other remedy which has not been used, an application for judicial review is incompetent.  That principle was also enshrined into the Rules of Court (see now RCS 1994, Rule 58.3(1)). In Tarmac Econowaste Ltd v Assessor for Lothian Region Lord Clyde suggested that if there was a statutory appeal alternative to an application for judicial review but that this was considered inadequate, that might be a sufficient reason for recourse to judicial review.  He suggested that this was an area of law that might be open to development in the interests of the provision of an effective procedure for redressing wrongs.  There are cases which indicate such developments have taken place.

 

The client may not know that there is/was a statutory right of appeal against the decision.  If there is, then that would be the procedure to follow, and judicial review is unlikely to be permitted where there is a statutory right of appeal which has not been used.  For example, in immigration and asylum cases there will usually be a statutory right of appeal to the Asylum and Immigration Chamber of the First-tier Tribunal against decisions made by immigration officials.  But there will be other situations where there is no right of appeal provided, or any right of appeal provided does not apply to the act or decision which is being challenged, in which case the only course available would be by judicial review.  A recent example of this is Maclean and others v Crofting Commission, SLC/54/16, 21 September 2016 in which the Scottish Land Court decided that a statutory right of appeal did not apply to certain decisions made by the Crofting Commission.  Where there is a statutory appeal procedure it is necessary to be particularly careful to consider the extent of the right of appeal, whether it has any limitations as to the circumstances it can apply, or who is entitled to pursue the appeal.

 

If the wrong procedure is followed there is a risk that the resulting passage of time means that it is too late to be allowed to proceed with the correct procedure.  Where there is a statutory right of appeal, and an appeal is not taken in time, that will often be the end of the matter.  It is not usually possible to bring judicial review proceedings because there is no other remedy now available because of a missed appeal deadline.  There can however be exceptions. 

 

There may be another reason why judicial review would not be appropriate, which is where, for example, the client is defending proceedings brought by a public authority and the same issue could be raised as a defence to those proceedings.  In that instance, judicial review might be possible but it may well not be necessary.

 

In some cases, rather than launching straight into court it would be more appropriate to make representations on the client’s behalf and to ask the decision make for a review of the decision first.  The decision maker might not have been given all the relevant facts, or the quality of an earlier representation might have been very poor and a better and clearer representation might persuade the decision maker to reach a more favourable decision.  This might also have a practical impact further down the line if the decision maker, for example, concedes that the earlier decision was flawed because it failed to take account something that it was required to consider, but points out that the client failed to tell them about that matter when the first decision was made.  In such circumstances the Petitioner might not only fail to get an award of their expenses against the Respondent, (s)he risks being found liable for the Respondent’s expenses by bringing them into court with undue haste.

 

There can also be situations where there is an alternative form of relief which is available procedurally, but where no practical benefit would arise from using that alternative would be obtained.  An example of this is Vikram Foods Glasgow Ltd v Secretary of State for the Home Department.  In that case it was argued for the Home Office that although there was no right of appeal against the decision under challenge, an alternative form of relief was available through making a fresh application which would be made a way of proceeding instead of judicial review.  However, it was accepted that a separate existing prior decision on the validity of a joint venture agreement would be taken into account if a fresh application was made, with the likelihood being that any fresh application would be refused.  It was also accepted that if the decision under challenge was reduced, the Home Office would reconsider the whole matter as if the earlier decision on the validity of the joint venture agreement had not been made.  It was held that there was a practical benefit from proceeding with the judicial review petition.

 

The following are examples of common situations where there is no right to seek judicial review of certain types of decisions because of the existence of an alternative appeal or review procedure:

 

Planning

Section 237(1) of the Town and Country Planning (Scotland) Act 1997 provides that, except as provided for by Part XI of that Act, the validity of the plans, schemes, orders and actions specified under that Section cannot be questioned in any other legal proceedings.  The 1997 Act and other planning Acts provide for other review and appeal procedures in respect of a wide variety of other acts or decisions.  This still allows judicial review proceedings to be brought where there is no statutory right of challenge.

 

Applications for planning permission are often delegated to a planning officer of the Council under a scheme of delegation.  There are time limits within which such applications ought to be determined.  Where that deadline has not been extended by agreement and has not been met the application will be deemed to have been refused.  In that situation there would be a right of appeal to a Local Review Board.  If there is an actual decision taken before the deadline (refusing planning permission, or to grant it subject to conditions), there would be a right of appeal to a Local Review Board.  The review notice would require to be served within three months of the date of the decision, or within three months of the date of the deemed refusal.  The progress of any further appeal depends on whether or not the Local Review Board decides the application (right of appeal on a point of law to the Court of Session), or fails to do so within 3 months of the application made to it and it is deemed to have refused the planning application (right of appeal to the Scottish Ministers, and a further right of appeal on a point of law to the Court of Session).  Where a planning decision is taken by councillors there is a right of appeal to the Scottish Ministers, and thereafter a further right of appeal on a point of law to the Court of Session.  There are also statutory rights of appeal to the Court of Session in many other situations where the Scottish Ministers are the principal decision maker or exercise an appellate function from the planning authority.

 

Public procurement

Under the Public Contracts (Scotland) Regulations 2015 a challenge to an award of a contract can be made in either the Sheriff Court or the Court of Session.  There are strict time limits.  These are shorter than the 3 month judicial review time limit.  If it is alleged there has been a breach of duty (e.g. to award a tender otherwise than in accordance with the tender documentation), and it is intended to ask the court for an order that the award of the tender is ineffective, then proceedings seeking such an order should be made within 30 days of the notification of the decision to award to tender to someone else and the summary of reasons why the tenderer was unsuccessful.  During that period there is a standstill provision which prevents the awarding party from entering into a contract with the successful tenderer.  After that time the contract may be awarded, restricting the remedy available to damages.  If the only remedy which is being sought is damages rather than an ineffectiveness order, then the time limit is 30 days from when the tender first knew or ought to have known that there were grounds for bringing proceedings (which could be a later date).  There are equivalent regulations in England.  In cases brought against the Legal Services Commission over tendering processes, the Court of Appeal has granted permission to bring judicial review proceedings notwithstanding the fact that there was an alternative remedy for damages in the Chancery Division for breach of the Public Contract Regulations, holding that this alternative did not necessarily preclude recourse to judicial review where a public law issue arises.  Third parties to the tender process (such as representative professional bodies and individuals with a sufficient interest in compliance with the procurement regime) may also bring judicial review proceedings.  The procedural rules in England have been amended so as to align the time limit for filing judicial review claim forms with the 30-day time limit from when it was known or ought to have been known that there were grounds for bringing proceedings.

 

Social work

Under Section 5B of the Social Work (Scotland) Act 1968 and The Social Work (Representations Procedure) (Scotland) Directions 1996 local authorities are required to provide a complaints procedure about the authority's discharge of, or failure to discharge, any of their functions under the 1968 Act.  The Scottish Public Services Ombudsman Act 2002 also provides a procedure for complaining about the acts and decisions of public authorities.  In McCue v Glasgow City Council, it was held that it was not competent to pursue a judicial review where either an alternative statutory or a non-statutory remedy was available and had not been resorted to.  Where there was a statutory remedy it was not necessary that the legislation did not expressly or by necessary implication exclude the court's supervisory jurisdiction.

 

 

Legislative Provisions

Court of Session Act 1988, Section 27A

Act of Sederunt (Rules of the Court of Session 1994) 1994, Schedule 2, Chapter 58.3(1) (as revised with effect from 22 September 2015)

 

 

Leading Cases

Dante v Assessor for Ayr, 1922 SC 109

British Railways Board v Glasgow Corp, 1976 SC 224

Bellway Ltd v Strathclyde Regional Council, 1979 SC 92

O'Neill v Scottish Joint Negotiating Committee for Teaching Staff, 1987 SC 90

King v East Ayrshire Council, 1998 S.C. 182

Tarmac Econowaste Ltd v Assessor for Lothian Region, 1991 SLT 77

Pollock v Secretary of State for Scotland, 1993 SLT 1173

MacKinnon v Argyll and Bute Council, 2001 SLT 1275

R (on the application of the Law Society) v Legal Services Commission, [2007] EWHC 1848 (Admin)

R (on the application of Chandler) v Secretary of State for Children, [2010] EuLR 232

R (on the application of Hossacks) v Legal Services Commission, [2011] EWCA Civ 788

McCue v Glasgow City Council, 2014 SLT 891

R (on the application of Gottlieb) v Winchester County Council, [2015] EWHC 231 (Admin)

Vikram Foods Glasgow Ltd v Secretary of State for the Home Department, 2016 SLT 902