Reviewing Judicial Review.
Date: 02/10/2015 | Dispute Resolution
22nd September 2015 marked the coming into force of the new judicial review procedure, under the Courts Reform (Scotland) Act 2014.
The major changes are twofold:
- The introduction of a 3 month time limit for bringing an application; and
- The requirement for judicial approval of any application, in order for it to proceed.
Bringing Scots Law into line with English practice, Section 27A of the Act requires that, from 22nd September 2015, an application to the Court of Session for judicial review must be brought within 3 months of the date on which the ground giving rise to the application first occurred. While the Court has the power to allow an application to be made after this where it considers it to be equitable in the circumstances to do so, this will be very much the exception to the rule.
Crucially, the introduction of this time limit also has ramifications for those seeking to bring an application in relation to grounds for review arising before 22 September 2015. Such applications will now be treated as having taken place on 22nd September 2015, meaning that an application will have to be lodged by 22nd December 2015. Expect a potential Christmas rush!
Requests for Permission
In another move towards English procedure, those seeking to bring an application for judicial review will also have to apply to the Court for permission to bring the application (Section 27B of the Act). This will usually be a written application, which will be considered by a single judge. He/she will only grant permission, where the applicant can demonstrate that:
- they have ‘sufficient interest’ in the subject matter of the application; and
- the application has ‘a real prospect of success’
It remains to be seen exactly how ‘real’ the prospect of success will need to be in order to satisfy the test, but it would be safe to say, at the minimum, the case will have to be more than just stateable.
Where an application for consent is rejected by the judge in writing, the applicant will have 7 days from the date of that decision to request an oral hearing, which will be considered and heard by a different judge.
Where the oral hearing also results in the refusal of permission, applicants will then have an opportunity to appeal that refusal, again by applying to the court within 7 days of the decision.
What does this mean for my business?
If you have been affected by a decision/action that is capable of judicial review, effectively what these changes mean is that you must act quickly. It will no longer be possible simply to rush in with an application at the last moment. Given the need to satisfy that ‘real prospect of success’ test, careful preparation of any application will be required. Taking early advice would be wise.