This blog considers the question of whether, even if there is a basis for bringing judicial review proceedings, there are other considerations which might mean that either by the time those proceedings are brought or have been decided, the court might take the view that there is no purpose in granting the petitioner the order that is being asked for. A variety of cases which illustrate the point are referred to either in the discussion or in the list at the end of this blog. There will be one more blog in this series before Christmas, followed by a break until mid-January.

This blog considers the question of whether, even if there is a basis for bringing judicial review proceedings, there are other considerations which might mean that either by the time those proceedings are brought or have been decided, the court might take the view that there is no purpose in granting the petitioner the order that is being asked for.  A variety of cases which illustrate the point are referred to either in the discussion or in the list at the end of this blog.

 

There will be one more blog in this series before Christmas, followed by a break until mid-January.

Part 7: Practical Benefit

There is no point winning the battle and losing the war.  An important question to ask at the outset is “what is it that the client wants to achieve, and what are the reasons why they have not achieved it so far?”.  If the matter is about a point of principle with no practical consequence, the court will be unlikely to allow matters to proceed to a full hearing.  Courts do not like dealing with purely academic issues due to the expense for those involved, and the pressure on court resources and the needs of other litigants.  Sometimes the issue is raised at the outset by a respondent who is arguing that even if there is no right of appeal, there is an alternative form of relief.  In that situation the issue might be whether there is a practical benefit in pursuing the judicial review (see for example Vikram Foods Glasgow Ltd v Secretary of State for the Home Department, 2016 SLT 902; and the discussion of alternative remedies in Part 5).

Sometimes the issue only arises at the end of the process, when the court is considering what remedy to grant (if any).  The situation may be one where the court considers it appropriate to exercise a discretion to refuse granting a remedy.  There will be occasions where it is obvious that even if the decision maker made an error about one matter, there are many other reasons why the actual outcome ought to remain the same.  The mistake made might have been about a matter that was not material to the issue under consideration.  It might have been a mistake in following the correct procedure, but that mistake was compensated for by something else that was done instead.  Even if the mistake was significant, the weight of all the other considerations point to the same outcome as had been reached originally.  It might be too late to undo the outcome, especially if third parties are involved.

Even if the court does not require these points to be addressed until the end of the process, it should be an issue which is thought about at the outset, so that if a judge says, “that is all very well …. but so what?”, there can be an answer ready.  In London & Clydeside Estates Ltd v Aberdeen District Council it was pointed out that the jurisdiction to grant decree of reduction of administrative decisions is inherently discretionary, and even where a court is satisfied that an administrative body has erred in law in reaching their decision, the court is not bound to reduce that decision.  In particular, it is relevant for the court to consider what practical effect the person seeking reduction will achieve if the decision is reduced.

 

A more recent example is John Muir Trust v Scottish Ministers.  In that case a judge had reduced planning consent for the construction of a wind farm on the basis that there had been a breach of a regulation requiring certain notices to be published.  By the time the appeal against that decision was heard information had come to light that the notices had in fact been published, and there had been no breach of the regulation.  The appeal against the Lord Ordinary’s decision was successful for this reason, and on one other ground concerning the judge’s reasoning.  It was also said that, even if it had been the case that the notices had not been published as required by the regulation, it would have been for the appellant to show that no different decision could have been reached, even if other representations had been received.  But no serious attempt had been made to demonstrate that there were any new or different arguments that could have been presented which had not already been considered in the decision-making process.

 

 

Leading cases

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

Johnston v Secretary of State for Scotland, 1992 SLT 387

King v East Ayrshire Council, 1998 SC 182

Simplex G.E. Holdings v Secretary of State for the Environment, [1989] 57 P&CR 306

R (Smith) v North Eastern Derbyshire Primary Care Trust, [2006] 1 WLR 3315

Walton Scottish Ministers, 2013 SC (UKSC) 67

R (Champion) v North Norfolk District Council, [2015] 1 WLR 3710

John Muir Trust v Scottish Ministers, [2016] CSIH 61