Procedure and Remedies in Judicial Review (L13)

Question 1

Court of Session Act 1988 s27A and B (as amended by the Courts Reform (Scotland) Act 2014) puts a time limit on judicial review. What is this?

Answer 1

3 months or ‘such longer period as the Court considers equitable having regard to all the circumstances.’

Question 2

Under the Court of Session Act 1988 s27A and B (as amended by the Courts Reform (Scotland) Act 2014), sometimes there is a need for permission for judicial review. When is this the case?

Answer 2

Only where applicant has ‘sufficient interest’ and the ‘application has a real prospect of success.’ Possibility of oral hearing at permission stage.
Possible to dismiss as ‘totally without merit’.

Question 3

In Wightman v Advocate General 2018 SLT 356, it was explained why there are procedural requirements for judicial review. What was said, and what was the issue in the case?

Answer 3

‘[I]ntended to sift out unmeritorious cases, but it is not to be interpreted as creating an unsurmountable barrier which would prevent what might appear to be a weak case being fully argued in due course’.

Was it possible for the UK to withdraw the Article 50 notification once it had been notified?
The purpose of the Article 50 requirement was to sift out unmeritable cases and make sure that poor cases weren’t brought.
So hopeless cases aren’t argued.

Question 4

What does AP v Lord Advocate [2019] CSOH 23 tell us about the procedure for judicial review?

Answer 4

Requirement for permission was argued to be a breach of Article 6.
Not a breach of Article 6.

Question 5

What are the remedies available in judicial review in Scotland?

Answer 5

Reduction.
Declarator.
Suspension.
Interdict.
Implement.
Restitution.
Payment (whether of damages or otherwise).

Question 6

What is the remedy of reduction?

Answer 6

Deprives of legal force legal instruments (including the decrees of inferior courts). Court may limit retrospective effect.
Decision is no longer valid in law.

Question 7

What is the remedy of a declarator?

Answer 7

Does not create new rights but established that a particular right or status applies. Can’t be used to resolve merely hypothetical issue.
Declaring that a decision was lawful or unlawful.

Question 8

What is the remedy of suspension?

Answer 8

Stay or arrest some act or proceeding complained of and to retain matters in their present position until the rights of parties can be determined by a final judgment’.
Putting something on hold.

Question 9

What is the remedy of an interdict?

Answer 9

Prevents unlawful wrong to petitioner’s rights.
Puts a stop to something, with finality.

Question 10

When is the remedy of payment available?

Answer 10

A successful claim in public law does not by itself give rise to a right to damages – must show private law cause of action.

Question 11

How has proceure in judicial review developed in England and Wales?

Answer 11

Historical position – distinction between ‘prerogative’ and ‘ordinary’ remedies – not available in a single set of proceedings.

Procedure for judicial review introduced in late 1970s and reflected in the Senior Courts Act 1981.

Now found in Civil Procedure Rules, Part 54:
‘(2) In this Section –
(a) a ‘claim for judicial review’ means a claim to review the lawfulness of
(i) an enactment; or
(ii) a decision, action or failure to act in relation to the exercise of a public function.’

Question 12

What does the case of O’Reilly v Mackman [1983] 2 AC 237 demonstrate in procedure in judicial review in E&W?

Answer 12

Exclusivity of judicial review procedure.

Question 13

What is the permission stage of judicial review in E&W?

Answer 13

Grant or refusal.
If refused, the application can be renewed.

Certification as ‘totally without merit’.
In this case, permission from the court will be required to renew the application.

Proceed to oral hearing.

‘Rolled-up’ hearing.
Permission sought for judicial review. Courts can’t tell if permission should be granted without hearing full arguments.
When permission decision is made, it is at the same time as the decision on the substantive issues.

Question 14

What is the ‘makes no difference principle’ in E&W?

Answer 14

S31(2A) and (3D) of Senior Court Act 1981.

Court must refuse to grant leave or relief where it appears to it ‘highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.’
Does not apply where there is ‘exceptional public interest.’

Comes down to the purpose of judicial review.
Is it about individual remedy? If so, this makes sense.
Is it about the rule of law? If so, this is inappropriate.
Unlawful decisions aren’t always heard.

Question 15

What remedies are available in judicial review in E&W?

Answer 15

Senior Courts Act 1981:
The old ‘prerogative remedies’: mandatory, prohibiting, or quashing order (final only).
The ‘ordinary’ remedies: declaration or injunction (interim or final).

Mandatory order: must do something.
Prohibiting order: must not do something.
Quashing order: deprives something of legal effect.

Declaration: statement of legal position.
Injunction: must do or not do a specified thing.

Question 16

What is the background for the case of M v Home Office [1994] 1 AC 377?

Answer 16

Facts: told not to deport asylum seeker and did. Told to return him and didn’t.

Historically, the Crown could not be sued in its own courts and no ‘coercive remedies’ were available against the Crown.
Former position changed by Crown Proceedings Act 1947. What about the latter?
Section 21(1). No injunctions against the Crown in ‘civil proceedings’.

House of Lords holds here that judicial review proceedings are not ‘civil proceedings’.
Leads to question of enforcement of coercive remedies.
Court holds that Ministers can be held in contempt in an official capacity.

Question 17

What did Lord Templeman say in M v Home Office [1994] 1 AC 377 about contempt proceedings?

Answer 17

‘… the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.’

‘I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt. I am also satisfied that Mr. Baker was throughout acting in his official capacity, on advice which he was entitled to accept and under a mistaken view as to the law.’

Here, finding of contempt considered sufficient. Leaves open question of personal contempt (and punishment).

Question 18

What is the background for the case of Davidson v Scottish Ministers [2005] UKHL 74?

Answer 18

Background is historic distinction in treatment of Crown in Scots law and fact that 1947 Act was mostly directed to English law, with little thought to Scottish position. Crown in Scotland did not enjoy this immunity.

Scottish Ministers argued that Crown Proceedings Act prevented grant of a coercive remedy against the Crown in (Scottish) judicial review proceedings.
Petitions to the supervisory jurisdiction of the Court of Session are not ‘civil proceedings’.

House of Lords rejects this claim.

Question 19

What did Lord Hope say in Davidson v Scottish Ministers [2005] UKHL 74 about the grant of remedies against the Crown?

Answer 19

[54]:
‘There are excluded from the expression “any civil proceedings” … proceedings by way of judicial review where relief is sought in respect of acts or omissions of the Crown or of an officer of the Crown acting as such.’

Position in Scots and English law now equivalent.

Question 20

What does R (KM) v Cambridgeshire County Council [2012] UKSC 23 tell us about remedial discretion in E&W, and is the position the same in Scotland?

Answer 20

‘… in the light of the amplification of Cambridgeshire’s reasoning in the mass of evidence filed on its behalf in response to the application for judicial review issued in July 2010, which has enabled the appellant… to lead a fully informed inquiry into its determination in courts at three different levels, the result of which leaves no real doubt about its lawfulness, it would be a pointless exercise of discretion to order that it should be quashed so that the appellant’s entitlement might be considered again, perhaps even to his disadvantage.’

Position in Scotland appears to be the same, though less settled.

Rule of law issues?
See Bingham, ‘Should Public Law Remedies be Discretionary?’ [1991] PL 64.

Question 21

What remedies are available in judicial review under the HRA?

Answer 21

Section 3:
Reading compatibly.

Section 4:
Declaration of Incompatibility.

Section 8:
Where public authority acts unlawfully, court ‘may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.’

Question 22

What is the criteria for, and the effect of a HRA s4 declaration of incompatibility?

Answer 22

‘If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.’

A declaration ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given.’

Question 23

What is the criteria for a HRA s4 grant of remedies?

Answer 23

‘No award of damages is to be made unless, taking account of all the circumstances of the case… the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.’

Question 24

S1 Judicial Review and Courts Act 2022 amends s29 of the Senior Courts Act 1981 to provide what remedies?

Answer 24

Power to provide suspended quashing orders. Allows for the court to suspend for a specified time, the effect of an order quashing a decision / action.

Power for the court to limit the retrospective effect of quashing orders in judicial review.
Sets out list of factors to guide the court’s discretion when deciding on the use of suspended quashing orders and prospective quashing orders.
Seeks to make clear that the concept of “nullity” does not prevent the courts from making use of the powers noted above.

S2 amends s11 of the TCEA 2007 to oust the supervisory jurisdiction of the courts (in England and Wales, Northern Ireland, and Scotland) in relation to judicial review claims challenging non-appealable decisions to refuse permission to appeal.