Scope and Procedure of Judicial Review Flashcards
Describe the tripartite relationship inThe West test.
There must be:
A conferring authority that delegates power.
A decision maker to whom power is delegated
An individual who is subject to the decision made
What is The West test?
The legal test involved in engaging supervisory jurisdiction. (JR)
Established in West vs Secretary of State 1992
What is the difference between Scots law JR and England ?
In Scots law it does not matter whether it is a private or public body nor does the body need to be part of a political executive or public administration.
In Englnd and Wales JR is about controlling governmental powers
What principles does the Tehrani v Secretary of State for the Home Department 2006 show?
The petitioner must show “a sufficient connection with Scotland” to invoke supervisory jurisdiction.
In this case he lived continuously in Glasgow
Physical location of decision is not decisive
What is the basic principle for territorial scope ?
Supervisory jurisdiction of the Court of Session is limited to Scotland. Normally, applicants for JR must be resident in Scotland
What does it mean to have “title to sue” ?
You must be party to a legal relationship which grants your rights that the person to whom you are raising an action has infringed or denied you of
What does it mean to have “interest to sue”?
You must have interest that is material or sufficient. There must be a real issue at hand.
How was title and interest replaced after the AXA General Insurance v The Lord Advocate 2011 case?
Lord Reed and Lord Hope established that “standing” was the better term to use and that “sufficient interest” was to be regarded instead.
Where can you find the new test developed after AXA in legislation?
The “sufficient interest” test is codified in s27B(2)(a)of the Court of Session Act 1988
S. 89 of the Courts Reform (Scot) Act 2014
What is the basic principle of the permission stage?
To filter out unmeritorious claims.
What things do the courts take into account when giving or withholding permission for applications for JR?
The courts looks at whether the applicant has sufficient interest in the subject matter and whether there is a real prospect for success in the application.
What are the requirements of the timing of applications for JR? Where can this be found?
After the date on which the grounds giving rise to the application first arise, you have 3 months
S27A Court of Session Act 1988 (amended 2014)
What remedies are available?
Petitioner can get a reduction declarator, suspension, interdict, implement, restitution, payment (whether of damages or otherwise), and any interim order.
What is the difference in JR in England compared to Scotland?
In England, the scope of review is concerned with whether the decision-maker is performing a public function that is governmental in nature
In Scotland, there is no distinction between the public and private nature of the body and it need not be governmental
