One of the areas that Drummond Miller specialises in is Judicial Review. In fact, over the recent past, this is an area where we have been receiving an increasing number of instructions in all manner of cases. From decisions of the Scottish Prison Service in respect of Prisoners, to local council decisions in respect of children with special needs. But what is Judicial Review? When can it be sought? What does it actually mean?
What is Judicial Review?
Judicial Review is the mechanism whereby the Court of Session can review the lawfulness or otherwise of a decision or action made by a public body. These sorts of actions require to be raised in the Court of Session and are not competent in the Sheriff Court. This, in practical terms, can mean that proceeding with a Judicial Review can be costly as it will require the advice of a solicitor and the services of an Advocate or Solicitor-Advocate to present your case in Court. Of course, Legal Aid may be available depending on your income and capital.
What does the Court look at?
If asked to review a decision, the Court will look at the way that the decision-maker has made their decision. For example, whether the decision was unlawful, whether the public body went beyond its powers or whether the correct procedures were followed.
It is most important to remember that the Court will not look at the merits of the decision i.e. whether or not it was right or wrong. The Court has no power in these sorts of proceedings to issue a new decision, even if they find that the decision-making was flawed. What they can do is to overturn the decision and order that the Public Body re-consider the matter.
When can you raise a Judicial Review?
The other important point about Judicial Review is that it is a procedure of last resort. If there is another mechanism open to you, such as an appeal or a complaints procedure, then this requires to be used first. If you wish to pursue a Judicial Review, you will require to show the Court that you have exhausted all other avenues open to you.
What can you ask the Court to do?
So, what can you ask the Court to do in these sorts of cases? You can ask them to quash the decision complained of, award damages if the decision has had a quantifiable adverse effect on you, make a declaration, or ask for interim orders, for example, interdict the public body from doing anything further in respect of their decision.
How do you raise a Judicial Review?
The correct procedure in Judicial Review procedure is to present a Petition for Judicial review. This is drafted and signed by an Advocate or Solicitor-Advocate and lodged with the Petition Department of the Court of Session. The Court will issue an order allowing the Petition to be served and this will allow your solicitor to provide a copy of the Petition to the decision-maker. At this time, a first hearing date is fixed and this date can either be used to argue the whole Petition or it can be used to deal with procedural matters. If the matter is of some urgency, then a motion can be enrolled with the Court to ask for an early hearing date; otherwise, the date may be some months in the future. The decision-maker will be given a period in which they have to lodge Answers to the Petition. These will show the decision-maker's response to your complaint. If no answers are lodged, then a hearing of the case may still be required as the Court will need to hear from your Advocate as to why it should grant whatever order you are looking for.
Immigration Judicial Reviews
It should also be noted that the Judicial Reviews in Immigration matters have a slightly different procedure to go through. If it is an immigration type matter that you wish to raise, then it would be wise to contact our Immigration Team directly for advice.
As mentioned above, if Legal Aid is not available to you, then Judicial Review can be expensive, given that it requires to be dealt with in the Court of Session. It is, however, meant to be a speedy process and the Court wishes these matters to be progressed as quickly as possible through the Court system.
If you have a valid complaint and have exhausted all of the other appeal or complaints avenues open to you, Judicial Review may be your only remedy. We would, however, encourage you to seek professional advice from those in our Litigation Team regarding the merits of your case, before embarking on court action.