Dispute Resolution

I have read a number of recent articles about a crowdfunding appeal to challenge the lawfulness of musical instrument tuition fees in Scottish schools. The people behind the campaign believe that Scottish local authorities should not charge tuition fees for musical instruments, and that by doing so, they are breaking the law requiring state schools to provide education without charging fees.  They hope to raise enough money to cover the legal costs involved in moving towards a petition for judicial review to challenge these fees. Judicial review is probably little known to most people – so what is it?

What is judicial review?

• Judicial review is a type of court proceeding where the court reviews the lawfulness of a decision or action taken by a public body, such as a local authority.

• It is a challenge to the way in which a decision has been made rather than to whether the right conclusion has been reached.

• The judicial review process is about ensuring public bodies follow correct procedures during the decision making process, act within their legal powers and do not exceed or abuse those powers.

•  It is not a process for arguing that the decision itself was incorrect and it is not a way of getting a decision made against you reversed.  In that situation an alternative remedy, like an appeal to a higher court, is more suitable.

• An application for judicial review must be raised in the Court of Session in Scotland.

• If an application for judicial review is successful the court has discretion as to what legal remedy to grant and there are various remedies available.  For example, it may reduce (quash) the original decision and order a decision maker to take the decision again. However, the court will not say what it thinks the ultimate decision should be and awards of financial damages are only available in very limited circumstances.

• Since September 2015, if you think you are entitled to seek judicial review it must be lodged within 3 months of the date of the decision, omission or action which you intend to challenge. It is therefore prudent to bear this in mind and seek legal advice sooner rather than later.

In day to day life we all deal with different kinds of public bodies whether we are applying for planning permission for a home extension, seeking local authority housing or dealing with regulatory bodies. Like the musical instrument tuition fees case, these organisations may make decisions which people disagree with.  In some circumstances judicial review of those decisions might be appropriate.  It can however be a complicated and expensive process, generally pursued only as a last resort. Therefore it is important to seek specialist legal advice on whether judicial review is appropriate. If it is not there may still be a range of other legal options available.

Marianne Griffin

Managing Associate at Brodies LLP
Marianne represents major banks, finance houses, leasing companies, credit card companies, debt purchase companies, utility companies and commercial clients in disputes relating to debt and asset recovery, insolvency and general contractual matters as well as advising on their pre-litigation rights.
Marianne Griffin