Procedure and Remedies in Judicial Review (L13) Flashcards
Court of Session Act 1988 s27A and B (as amended by the Courts Reform (Scotland) Act 2014) puts a time limit on judicial review. What is this?
3 months or ‘such longer period as the Court considers equitable having regard to all the circumstances.’
Under the Court of Session Act 1988 s27A and B (as amended by the Courts Reform (Scotland) Act 2014), sometimes there is a need for permission for judicial review. When is this the case?
Only where applicant has ‘sufficient interest’ and the ‘application has a real prospect of success.’ Possibility of oral hearing at permission stage.
Possible to dismiss as ‘totally without merit’.
In Wightman v Advocate General 2018 SLT 356, it was explained why there are procedural requirements for judicial review. What was said, and what was the issue in the case?
‘[I]ntended to sift out unmeritorious cases, but it is not to be interpreted as creating an unsurmountable barrier which would prevent what might appear to be a weak case being fully argued in due course’.
Was it possible for the UK to withdraw the Article 50 notification once it had been notified?
The purpose of the Article 50 requirement was to sift out unmeritable cases and make sure that poor cases weren’t brought.
So hopeless cases aren’t argued.
What does AP v Lord Advocate [2019] CSOH 23 tell us about the procedure for judicial review?
Requirement for permission was argued to be a breach of Article 6.
Not a breach of Article 6.
What are the remedies available in judicial review in Scotland?
Reduction.
Declarator.
Suspension.
Interdict.
Implement.
Restitution.
Payment (whether of damages or otherwise).
What is the remedy of reduction?
Deprives of legal force legal instruments (including the decrees of inferior courts). Court may limit retrospective effect.
Decision is no longer valid in law.
What is the remedy of a declarator?
Does not create new rights but established that a particular right or status applies. Can’t be used to resolve merely hypothetical issue.
Declaring that a decision was lawful or unlawful.
What is the remedy of suspension?
Stay or arrest some act or proceeding complained of and to retain matters in their present position until the rights of parties can be determined by a final judgment’.
Putting something on hold.
What is the remedy of an interdict?
Prevents unlawful wrong to petitioner’s rights.
Puts a stop to something, with finality.
When is the remedy of payment available?
A successful claim in public law does not by itself give rise to a right to damages – must show private law cause of action.
How has proceure in judicial review developed in England and Wales?
Historical position – distinction between ‘prerogative’ and ‘ordinary’ remedies – not available in a single set of proceedings.
Procedure for judicial review introduced in late 1970s and reflected in the Senior Courts Act 1981.
Now found in Civil Procedure Rules, Part 54:
‘(2) In this Section –
(a) a ‘claim for judicial review’ means a claim to review the lawfulness of
(i) an enactment; or
(ii) a decision, action or failure to act in relation to the exercise of a public function.’
What does the case of O’Reilly v Mackman [1983] 2 AC 237 demonstrate in procedure in judicial review in E&W?
Exclusivity of judicial review procedure.
What is the permission stage of judicial review in E&W?
Grant or refusal.
If refused, the application can be renewed.
Certification as ‘totally without merit’.
In this case, permission from the court will be required to renew the application.
Proceed to oral hearing.
‘Rolled-up’ hearing.
Permission sought for judicial review. Courts can’t tell if permission should be granted without hearing full arguments.
When permission decision is made, it is at the same time as the decision on the substantive issues.
What is the ‘makes no difference principle’ in E&W?
S31(2A) and (3D) of Senior Court Act 1981.
Court must refuse to grant leave or relief where it appears to it ‘highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.’
Does not apply where there is ‘exceptional public interest.’
Comes down to the purpose of judicial review.
Is it about individual remedy? If so, this makes sense.
Is it about the rule of law? If so, this is inappropriate.
Unlawful decisions aren’t always heard.
What remedies are available in judicial review in E&W?
Senior Courts Act 1981:
The old ‘prerogative remedies’: mandatory, prohibiting, or quashing order (final only).
The ‘ordinary’ remedies: declaration or injunction (interim or final).
Mandatory order: must do something.
Prohibiting order: must not do something.
Quashing order: deprives something of legal effect.
Declaration: statement of legal position.
Injunction: must do or not do a specified thing.