Blog: Upfront cost of judicial review casts a shadow

Sheila Webster, partner at Davidson Chalmers, writes on reforms to Scotland’s judicial review process.

A year on from the significant reforms introduced to Scotland’s judicial review process, it’s an ideal opportunity to consider whether these changes have been for the better.

While judicial review cases form a small percentage (less than 10 per cent in the last official figures) of Court of Session cases, historically they took up a disproportionate amount of available sitting days. Reforms, following the 2009 Gill Review, were introduced in September 2015, including time limits for bringing a judicial review and the requirement for leave or permission to bring proceedings.

Parties are now required to bring judicial review proceedings within three months from the date in which there were grounds to give rise to an application, although the court has discretion to allow late challenges in some circumstances. Local authorities and property developers are used to dealing with community challenges to planning decisions, for example, especially when a new or controversial development is approved. The new time limit, however, is proving effective in providing greater certainty as to when a controversial decision can be treated as final, at a much earlier stage.

A second change to the process has meant a party now only needs “sufficient interest” to bring a judicial review. While there has been an undoubted increase in the number of petitions in recent years, the latest official Scottish Government statistics cover the period prior to the new changes so it is not yet possible to tell if this will encourage more judicial review applications. It should, however, make it easier for community groups and affected individuals to bring such challenges.

The Scottish Government’s ongoing promotion of greater community engagement may well encourage more groups and individuals to challenge decisions. We have already seen evidence of this with the John Muir Trust and RSPB challenging wind farm developments.

The introduction of the permission requirement, the third major aspect of the reforms, was brought in to ensure claims without real prospects of success were stopped at an early stage. The hurdle for applicants is relatively low, yet statistical and anecdotal evidence suggests the court has been willing to refuse permission in almost 50 per cent of applications and that the aim of the Gill Review of limiting unmeritorious claims is being achieved.

Of approximately 140 judicial review applications lodged up to mid-may 2016, permission was contested in around 90 per cent of cases. Dealing with a contested application for permission has meant a much greater focus for both parties in ensuring all relevant information to assess prospects of success is before the court from the start. Overall, almost half the applications lodged were deemed not to have those real prospects of success.

The reforms therefore seem to be ensuring both parties must assess their position at an early stage to determine the strength of a challenge and the answer to that challenge. That can only be helpful in promoting earlier decisions on whether to proceed with a challenge or a defence to that challenge, providing earlier certainty for all parties.

The costs of bringing a judicial review application and in dealing with it, however, have become more front-loaded, with the expense for both parties from the outset likely to be much greater.

The earlier scrutiny of judicial review applications is to be welcomed, as is the imposition of a time limit in which they can be brought, in line with such applications south of the Border.

It seems judicial caution about closing the door to a remedy is being balanced with the desire to stop unmeritorious claims at an early stage.

It remains to be seen if judicial review continues to grow in popularity as a remedy in light of these reforms or whether the early high costs will deter individuals and community groups from getting access to an important route to justice through this process.