On 22nd September 2015, the Court of Session rules in relation to the judicial review of administrative decisions to the Court of Session will undergo a radical change with the intention of streamlining and speeding up the procedure. Judicial review applications can be brought against administrative decisions in relation to a diverse range of matters.
These could be challenging a decision of the Scottish Ministers in relation to planning, challenging the validity of an Act of the Scottish Parliament, or at the other end of the scale challenging the decision of a golf club committee. What binds these together is that they are decisions from which no other right of appeal is possible (except in exceptional circumstances).
These rules will apply to applications for judicial review made on or after 22nd September 2015 and can be found here.
While there has always been an imperative to bring a judicial review application to court without undue delay, one of the most important changes being made is that such applications must now be brought within three months of the decision complained of (s.27A Court of Session Act 1988). Transitional provisions allow for pre 22nd September 2015 decisions to be reviewed until 22nd December 2015.
Following lodging and service of the Petition a new “permission” stage is introduced. In short, the Court will consider the interest of the applicant and whether the application has any real prospect of success to determine if the petition will be permitted to proceed to a substantive hearing. This may be done with or without an oral hearing.
If permission is granted the action proceeds to a substantive hearing within 12 weeks. If permission is refused without an oral hearing then a review can be requested. If that review is refused that is the end of the matter. If the review is granted then an oral hearing takes place. If permission is refused after an oral hearing this decision can be appealed.
Given the new rules, clients are required to make an early decision regarding a potential challenge, and practitioners will need to ensure the case is fully prepared from the outset.