As a solicitor with a large Judicial Review practice, I have been watching the progress of the proposed court reforms in this area particularly intently. Speculation was rife about what would actually come to fruition; tight time limits, a permissions stage to mirror the English system or judge led case-management.
Now that the Court Reforms (Scotland) Act 2014 is here, it seems inevitable that the two main changes we are going to be faced with are the introduction of a 3 month time limit and a new permission stage which requires to be passed before a case can progress. The intention is that this will mean that the progress of Judicial Reviews thought the court system will become more streamlined with deadlines becoming stricter and tighter. Section 89 of the 2014 Act sets out the blue print for the new procedure.
So, how will these new procedures work in practice? At this stage, without the specific rules or practice note being in place, it is hard to tell. However, the following important issues need to be borne in mind by all now:
- The 3 month time-limit will begin from "the date on which the grounds giving rise to the application first arise". Presumably, this means the date on which the body makes its final decision which is to be reviewed.
- Before proceedings can commence, permission has to be sought, and granted, by the court.
- Permission can be granted by a judge based on a review of the papers or he/she can ask for an oral hearing to take place. At an oral hearing, an Advocate would require to make submissions in favour of permission being granted.
- A two-fold test applies in all Judicial Reviews, apart from those arising out of a decision of the Upper Tribunal, when consideration is being given by a Judge as to whether permission should be granted:
(a) the applicant requires to demonstrate a sufficient interest in the subject matter of the application; and
(b) the application has to have a real prospect of success. - If permission is refused by the judge, then there are only 7 days, from the date of refusal, in which to ask for a review of that decision. That review will be conducted by different udge.
- If you are unlucky enough to have your application refused again on review, then there are only another 7 days to appeal to the Inner House of the Court of Session (Appeal Court).
In theory, these changes should benefit everyone in that these types of proceedings will be dealt with more quickly and efficiently. It should also provide more certainty in that arguments from the other side about delay should become a thing of the past.
Judicial Review is a vital part of our legal system. It provides a mechanism to hold public bodies to account for their decision-making and provides much needed protection for some of the most vulnerable groups in our society against the State. The stricter approach of the court, however, also does cause concerns to some. For potential Petitioners (the name for the person bringing a Judicial Review), there are many issues which will have to be considered in a very short space of time. My two main concerns are:
- Clients being able to obtain correct and appropriate legal advice in the time frame available. A Petition for Judicial Review requires to be signed off by Counsel and, therefore, not only does a solicitor have to advise a client as to whether there is a stateable case with a real prospect of success but an Advocate requires to be instructed too. This can be a time-consuming process in itself.
- How these proceedings will be funded. Legal Aid is available for Judicial Reviews but Legal Aid applications can take a long time to be decided. Funding applications of this sort will need to be made as a matter of urgency. Perhaps, alternative funding arrangements will require to be thought about.
Only time will tell how these changes will actually work in progress. In the meantime, however, if you are considering a Judicial Review, my clear advice is to act quickly. Seeking appropriate legal advice at an early stage may avoid complications down the line.
If you wish to know more about Judicial Review or indeed if you need advice in this area, then please do not hesitate to contact a member of our litigation team for more information.