The last in our series of e-updates, following the publication of the Scottish Civil Courts Review last week, concerns the reforms proposed in respect of petitions for judicial review and expenses in public interest litigation.
Title and interest
As the law stands, in order to bring a petition for judicial review in Scotland, a petitioner must have both title and interest to sue. That is to say, an individual or body seeking to challenge an act or decision of a public body must:
§ be a party to some legal relationship which gives him some right which the person against whom he raises the action either infringes or denies, and
§ have a sufficient interest to bring proceedings.
This separation of title and interest has posed difficulties for campaigning groups, who wish to bring proceedings to challenge the lawfulness of controversial policies or decisions of public bodies, who often have title but lack interest. The Review proposes that the current restrictive approach to Scots law should be amended so that the separate tests of title and interest are replaced by a single test:
§ whether the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings.
The Review declines to elaborate on this test further, other than to say that whether the petitioner can satisfy this test will depend on the individual facts and circumstances of the case. This relaxation of the rules is in line with the more liberal approach taken by the courts in England and Wales.
Time limit to bring proceedings
In addition to clarifying the rules on title and interest to sue in judicial review applications, the Review proposes that a time limit of three months should be introduced within which applications for judicial review must be brought. At present there are no such time limits in place. The Review suggests that affected persons wishing to challenge an administrative decision should do so at the earliest possible opportunity, particularly as there is a public interest in challenges being made promptly and resolved quickly in such cases.
As in England and Wales, the petitioner would not necessarily be entitled to wait up to three months before commencing proceedings and the Review considered that in some cases a delay of three months in bringing an action would be excessive. Nevertheless, it is also recommended that the courts have discretion to permit petitions to be presented outwith this period.
Leave to proceed
Whilst there has been a steady increase in the number of petitions for judicial review in recent years, it has been found that a disproportionate amount of court time is taken up with the hearings of such petitions in the absence of a mechanism whereby unmeritorious applications can be sifted out. Accordingly, the Review recommends the introduction of a requirement to obtain leave to proceed with an application for judicial review in Scotland.
Under the Review's proposals the petition would be served on the respondent who may oppose the application for leave. The test to be applied by the courts in deciding whether or not to grant leave to proceed would be whether the petition has a real prospect of success. It is hoped that this new procedure will encourage early concessions by respondents in cases which are well founded and prevent unmeritorious claims from proceeding, enabling those cases where leave is granted to be dealt with expeditiously. It is also considered that the introduction of a requirement to seek leave will provide for better active case management. This is a topic which was discussed in Monday's e-update and which the Review considers should also apply in applications for judicial review.
PUBLIC INTEREST LITIGATION
Perhaps of more interest to potential litigants, however, is the Review's recommendation in respect of expenses in public interest litigation, specifically the Review's recommendation that an express power should be conferred upon the courts to make a range of special orders in relation to expenses in cases raising significant issues of public interest. The purpose of this is to prevent potential liability in expenses from acting as a disincentive for parties who may wish to bring an action of public importance or interest but who are unable to meet adverse finding in expenses.
Such orders could be made at the outset of the proceedings or during the course of proceedings and could be to the effect that the petitioner would not be liable for the expenses of the action, even if unsuccessful, or that the expenses of the successful party will be capped at a specific amount. This is a departure from the normal rule whereby expenses are awarded at the end of proceedings and the "loser" pays, and is in line with developments in other jurisdictions.
As with all of the recommendations, it is now a matter for the Scottish Ministers to decide what to take forward. They announced yesterday that it was their intention to come forward with proposals next year. Those will then be the subject of detailed public consultation.