Inner House rules oral hearing not required in review of decision to refuse judicial review

Reclaiming motions by April Prior, Gordon Burns, and Joseph Millbank maintained that the Court of Session Act 1988 required an oral hearing in such cases, as without one there was no avenue of appeal. This argument was different to one advanced before the Lord Ordinary, raising issues of substance and procedure.

The reclaiming motions were heard by the Lord President, Lord Carloway, sitting with Lord Brodie and Lord Malcolm.

Entirely different argument

Each of the three petitioners had previously raised separate petitions for judicial review. All of them were refused, although Ms Prior’s petition was partially successful. All of them had requests for a review of the refusals refused without an oral hearing.

The relevant sections of the Court of Session Act 1988, Sections 27B to 27D, were inserted by the Courts Reform (Scotland) Act 2014, following the Scottish Civil Courts Review in 2009 and a model previously introduced in England and Wales.

The argument advanced before the Lord Ordinary was that the legislation did allow the Lord Ordinary to refuse the request for a review but it was contrary to the ECHR and therefore outside the legislative competence of the Scottish Parliament. This argument was adopted as a “fall-back” position in the appeal.

The appeal raised four principal issues: first, whether it was legitimate for the petitioners to run an entirely different argument from that contained in their petitions; second, if it was competent to review a judicial decision in a petition process; if it was competent for the second Lord Ordinary to refuse a request for review of a refusal of permission without an oral hearing; and if the ability to refuse a petition without an oral hearing, and hence without a right of appeal, is compatible with the European Convention.

The petitioners requested reduction of Sections 27B-D of the 1988 Act, or alternatively a declarator of their unlawfulness in so far as they did not permit an oral hearing or right of appeal in some cases. In addition, there was a crave for reduction of the interlocutors of the Lords Ordinary in the original petitions which refused the requests for a review of the refusal to grant permission to proceed without an oral hearing.

Ought to lodge minute of amendment

The opinion of the court was delivered by Lord Carloway. On the new arguments adopted by the petitioners, he said: “The respondents take exception to the petitioners being able to advance a quite different argument from that which is contained in the pleadings and was argued before the Lord Ordinary. There is considerable force in this objection. Rules of procedure are an important element in the judicial system. It is not a question of efficiency or speed trumping fairness and justice. The need to determine cases expeditiously and to achieve finality is not a separate or subordinate consideration to the interests of justice.”

He continued: “In the event of there being a significant change of tack in the ground of challenge, a petitioner ought to lodge an appropriate Minute of Amendment which will reflect that change and, if the Minute is received, permit the respondent a formal and fair opportunity to amend his Answers in response. Whether amendment will be allowed will, as always, depend on the interests of justice.”

Explaining that this would be sufficient to reject the principal argument advanced by the petitioners, he said: “A substantial change of tack may merit either a refusal of the amendment; possibly leaving the petitioner to attempt to lodge a new petition, or a remit for reconsideration by the Lord Ordinary. What is not legitimate is for the petitioner to lodge a Note of Argument which is not consistent with the pleadings.“

He continued: “It is equally not legitimate, without permission of the court, to raise new arguments which do not conform to the written Note. These are not procedural niceties standing in the way of due observance of the law. They are important rules which ensure fairness and promote the determination of where the justice of the cause lies.”

Manifestly incompetent

The court did not rest its decision on the above ground, and continued to examine the other arguments advanced by the petitioners.

Explaining that the Court of Session could not reduce the decisions of the original judicial review processes in this procedure, Lord Carloway said: “This is manifestly incompetent. The supervisory jurisdiction of the Court of Session does not include the power, in such a process, to review judicial decrees; even those of the Sheriff Court. The Court can reduce its own decrees, but only in the context of an ordinary action.”

On the construction of the provisions of the 1988 Act, he said: “The Scottish Civil Courts Review did not state that an applicant would be entitled to an oral hearing. Rather, it said that the papers would be considered by a Lord Ordinary who would ‘not normally require on oral hearing’. In the event of a refusal of permission to proceed, the SCCR said that the petitioner ‘should be entitled to request that the matter be reconsidered at an oral hearing’. That is what was enacted. The entitlement is to make the request to a different Lord Ordinary. It is not a right to an oral hearing.”

On the application of the ECHR, in particular Article 6, to this case, he said: “As the Lord Ordinary held, even when Article 6 applies with full force, there are circumstances in which an oral hearing is not required. Whether such a hearing can be dispensed with will depend on the nature of the case and whether it can be fairly disposed of without an oral hearing. The application of sift type procedures, whether in the context of a judicial review of an administrative decision or an appeal from a court or tribunal, is a common feature of many systems. It is seen as necessary, and proportionate, in order to avoid wasting precious judicial resources on cases where there is no real prospect of success. Such systems will comply with Article 6 provided that the case is one that can be dealt with fairly on the papers.”

For these reasons, the reclaiming motions of the petitioners were refused.