Public Law

As will be known, the Scottish Government invited views on proposals to restructure the way civil cases and summary criminal cases are dealt with by the courts in Scotland. The consultation paper, ‘Making Justice Work‘ contains proposals for implementing the majority of recommendations of the Scottish Civil Courts Review, led by Lord Gill. The legal framework for the proposals is contained in the Draft Courts Reform (Scotland) Bill. The proposals will introduce new hurdles which must be overcome before judicial review proceedings can be brought.

Of particular interest to public authorities who may be the subject of judicial review and practitioners advising clients on bringing proceedings, the draft Bill (specifically, Chapter 3) would make two potentially significant changes to judicial review procedure.

First, the draft Bill provides for a three month time limit for making an application to the Court of Session. If the draft Bill was passed in its current form, a petition would have to be lodged within 3 months of the date on which the grounds giving rise to the application arose (unless a shorter period is provided for in legislation relevant to the particular case). The draft Bill does, however, give the Court of Session the power to extend this time limit where it considers such an extension “equitable having regard to all the circumstances”. This would be the Scottish equivalent of the English rule (still generally applied) which requires a claim for judicial review to be filed “promptly and in any event not later than 3 months after the grounds to make the claim first arose”. Of further interest, the draft Bill provides that any legislation which currently enables a petition to be lodged after the period of 3 months would cease to have effect.

Second, the draft Bill provides that, before an applicant can bring judicial review proceedings, they must seek, and be granted, leave by the Court of Session. The explanatory notes to the draft Bill explain that each case will be considered by a single judge who will determine whether the applicant has sufficient interest in the subject matter of the application and whether the application has reasonable prospects of success. It is not envisaged that a hearing will take place at this stage, but if leave is refused, the applicant will have 7 days within which they can request an oral hearing to review that decision. The reference to “sufficient interest” reflects the change in the Scottish approach to standing in judicial review which had in any event been brought about by the Supreme Court decision in Axa.

Just as important as these proposed changes, the consultation paper recommends that the Court of Session continues to have exclusive jurisdiction to hear petitions for judicial review. This was the position we adopted in the response which Brodies submitted to the Gill review.

The consultation closes on 24 May 2013.