Judicial Review in Scotland: big changes are coming on 22 September 2015

On 22 September 2015 major changes to judicial review procedure in Scotland come into force. The changes aim to ensure the “speedy determination” of judicial reviews. They will have important implications for those potentially involved in judicial reviews, including developers, funders and local authorities.

The most important changes are:

• 3-month time limit After 22 September 2015, anyone contemplating challenging a decision of a public body must be careful to ensure that their application for judicial review is made within the new 3-month time limit.

Where grounds giving rise to an application for judicial review arise on or after 22 September 2015, the application must be made within 3 months of the date upon which the grounds first arise. Applications after the end of the 3-month period will only be permitted if the Court considers that it would be equitable to do so.

Where the grounds arise before 22 September 2015, but an application is not made before 22 September 2015, the 3-month period for making an application will be deemed to start on 22 September 2015. In those circumstances an applicant will therefore have until 21 December 2015 to make an application.

Applications for judicial review made before 22 September 2015 will not be affected by the changes and will continue to be subject to the current rules.

• Permission of the Court From 22 September 2015 applicants will require the Court’s permission to allow their application to proceed. The applicant must satisfy the Court:

1. That the applicant has sufficient interest in the subject matter of the application; and
2. That the application has a real prospect of success.

A person served with a petition for judicial review can participate in the Court’s decision on whether to allow the application to proceed. Alternatively, they can choose not to participate in that decision and, if permission is granted, can contest the petition (provided they notify the Court that they intend to contest the petition).

The Court’s decision on whether or not to allow an application for judicial review to proceed can be made without an oral hearing. However, where the Court refuses permission for the application to proceed (or permits it to proceed subject to conditions, or only on particular grounds), the applicant can ask for an oral hearing at which the Court’s decision is reviewed. If, after such a hearing, the Court refuses to permit an application to proceed, the judge must give a reasoned decision. A decision to refuse permission can be appealed to the Inner House of the Court of Session.

• Case management

Where permission is granted, the new rules provide for more active judicial case management and time limits for each stage of procedure. For instance, a procedural hearing must be fixed for no later than 6 weeks from the date on which permission is granted. The substantive hearing, at which an application for judicial review is typically determined, is to take place no later than 12 weeks after permission is granted.

These changes aim to ensure that judicial reviews are progressed and determined with appropriate speed.

Comment

Those working in the property sector in particular should be encouraged by these imminent changes and the greater certainty they should promote. Developers and their funders often take a view on the risk of proceeding with a development while there is an ongoing threat of an application for judicial review. However, they will now be able to do so at least in the knowledge that potential applicants will generally have only a 3-month window within which to seek judicial review.

The weeding-out of unmeritorious applications is a similarly welcome innovation. Whilst an applicant can ultimately appeal the Court’s decision to refuse permission for a judicial review, the rules lay down timescales which will hopefully ensure the swift and efficient progression of applications for which permission is granted, and those for which permission is refused, alike.