Two recent cases serve to remind us once again that Scots law's flexible view on the distinction between private law and public law can often afford litigants a speedier and more flexible procedures than those available in "standard" private actions based on contract.
Judicial review is often thought of as a remedy invoked simply by disgruntled parties against the decisions of government or other public bodies. However, leading cases from the past have established that the procedure of judicial review is available whenever A is made the subject of a decision by B in circumstances where the power to make that decision has been bestowed upon B by C. The simple nature of this triangular relationship opens up the possible uses of the procedure to challenging everything from decisions on asylum by Her Majesty's Government, to decisions on dress codes by golf club committees.
Solving a private problem with public law?
In NAHG Petitioner Lord McEwan allowed a petition by a dissatisfied company director for judicial review of the disciplinary procedures of a group of companies to proceed despite the companies' attempts to have it dismissed on the basis that it concerned a private contractual matter. Lord McEwan highlighted not only that Scots law has never recognised that judicial review is strictly confined to matters of public i.e. governmental law but also that the triangular formula established by case law might now be relaxed further. That view coincides with a recent change in the court rules to the effect that different types of cases might be more easily switched between different types of court procedure, as opposed to the court dismissing actions for being in the wrong form and forcing parties to start all over again.
Solving a public problem with private law?
Shortly prior to Lord McEwan's decision, the force of judicial review as a remedy was highlighted by Lord Uist in Christina A S FR 224 Petitioner. That case saw the operators of a vessel successfully reduce a decision of the Scottish Ministers to restrict the available fishing quota. Lord Uist held, amongst other things, that the common law standard of natural justice had not been adhered to owing to the manner in which the Ministers had arrived at their decision. In particular, the vessel's operators were not provided with the full evidence upon which the decision was based and therefore were unable to properly challenge it. Having found that breach, the operators will now seek damages.
A procedure worth considering
Generally (with notable exceptions), petitions for judicial review conclude more swiftly than ordinary actions. The specific rules governing them tend to see factual matters focused and agreed at an earlier stage. The court enjoys the type of hands- on involvement it also has in commercial actions. Although not always suitable or appropriate, the increasingly flexible nature of both the procedure and its legal basis is something to be considered when taking a view on how best to challenge a decision or support an action for damages. It is not the preserve of academic lawyers debating issues of public policy. It is a tool increasingly used by commercial companies and private individuals to force or challenge outcomes affecting them and their businesses.