In a recent decision of a Sheriff at Falkirk Sheriff Court, a Sheriff has dismissed a court action on the grounds of a lack of jurisdiction upon the basis that the action was in fact a judicial review within the exclusive jurisdiction of the Court of Session. This judgment serves as a useful reminder to public authorities that judicial review must proceed in the Court of Session. It is also a general reminder of some of the key differences between judicial review in Scotland and other parts of the United Kingdom.

Facts

The pursuers sought declarator against the defenders that meetings of the Falkirk Muslim Association ("the Association") were not held in accordance with the Association's constitution and interdict (the Scottish equivalent of injunction) preventing the Association from continuing to operate and manage the Association in a way which was argued as being outside the limits of the Association's constitution.

The Association is a voluntary association governed by a constitution and was a registered charity.

The Association argued that the sheriff court had no jurisdiction to hear the case upon the basis that the court action was essentially a judicial review which was within the exclusive jurisdiction of the Court of Session. Unlike in other parts of the United Kingdom, judicial review was available in this context and the action was dismissed.

Remedies available in the Sheriff Court

The pursuers sought declarator and argued that this was competent within the (relatively) new powers conferred upon sheriff courts under section 38 of the Courts Reform (Scotland) Act 2014 ("the 2014 Act"). The Sheriff agreed that section 38 of the 2014 Act made it competent for sheriffs to grant the remedies of declarator and reduction (quashing). However, section 38 of the 2014 Act is concerned with only procedural matters and not substantive matters. In other words, the Sheriff held that section 38 only deals with remedies and not jurisdiction and that section 38 did not create new substantive jurisdiction of judicial review for the Sheriff Court.

The law on judicial review

The Sheriff considered the starting point for consideration of judicial review in Scotland is the seminal case of West (1992 SC 385) which provides the principles by which the competency of all applications for judicial review are to be determined.

West provides that judicial review is available where there is a three-party relationship. This can be summarised as follows:

  1. Conferring person: a person delegates authority;
  2. Receiving person: the person with delegated authority makes a decision;
  3. Affected person: a person affected by the decision with a relevant interest can challenge the decision by way of judicial review.

In this case, the Sheriff observed that the question to be answered was whether the case was "truly about" matters falling within the jurisdiction of judicial review or not. The Sheriff found that this case was truly about judicial review. The Association had a constitution and the three-party relationship existed:

  1. Conferring person: the membership of the Association had delegated authority to a committee and its members at meetings;
  2. Receiving person: the Association's committee and members voting at member meetings had delegated authority to make decisions;
  3. Affected person: trustee(s) could be affected by the decisions taken under delegated authority.

The Sheriff decided that the essence of the claim and what the claim was truly about was a claim that the those with authority delegated by the association had acted outside of their powers within the limits of the Associations' constitution. This was therefore a claim withing the Court of Session's exclusive judicial review jurisdiction. The consequence was fatal to the action and it was dismissed.

Comment

This judgment serves as a useful reminder to public authorities who are often faced with challenges to their decision making. Where an action is brought in the Sheriff Court against actions of public authorities which are in essence a judicial review, then public authorities will have a defence to the action on the basis the action should have proceeded as a judicial review.

Separately, this is a key reminder for all of those that do business throughout the United Kingdom of one of the key differences in judicial review throughout the United Kingdom. In England, Wales and Northern Ireland, a judicial review can only proceed in the High Court (subject to limited statutory exceptions) on a public law matter. This restriction requires the defender to have some public law power which has been exercised and it would not be competent to judicially review the Association's actions in other parts of the United Kingdom.

In contrast, in Scotland, the public/private law distinction does not apply. There are two key takeaways:

1.Judicial review will be competent against private bodies such as voluntary associations, sporting bodies and religious organisations in certain circumstances. The key question in Scotland is whether the three-party relationship exists and whether the case is truly about the exercise of power within the confines of conferred powers.

    2. Raising an action when judicial review is the appropriate mechanism will be fatal to the action. This will carry costs implications for any unsuccessful actions which are raised when the correct process was a judicial review.

    Contributors

    Niall McLean

    Partner & Solicitor Advocate

    Lewis Newlands

    Senior Associate