Judicial review petition challenging Highland Council ratings committee refused

The petitioners and reclaimers, David Booth and Holly Philp, averred that the Non Domestic Rates Appeal Committee of The Highland Council had acted unlawfully in making a decision that had adverse financial consequences for them.

The motion was heard by Lord Pentland.

Oral hearing ordinarily appointed 

On 19 December 2019, the Committee heard a rates appeal by the petitioners under section 238 of the Local Government (Scotland) Act 1947. The appeal was refused, and the petitioners sought a judicial review in the Outer House. The Lord Ordinary who originally heard the petition in September 2020 refused permission to proceed on the grounds that the petition was time-barred and had no real prospect of success.

The petitioners requested a review of the Lord Ordinary’s decision under the Court of Session Act 1988. A different Lord Ordinary refused the request for review for the same reasons as the first. Neither of the Lords Ordinary held an oral hearing, and made their decisions based on the papers alone.

The petitioners enrolled a reclaiming motion in the Inner House seeking to review the decision of the second Lord Ordinary. The motion was referred to Lord Pentland as a procedural judge by the Deputy Principal Clerk of Session due to questions about its competence.

A lay representative for the petitioners submitted that the motion was competent, having regard to the observations of Lord Carloway in Prior v Scottish Ministers (2020), in which he said that an oral hearing should “ordinarily” be appointed if a Lord Ordinary is considering refusing permission to proceed with a judicial review.

It was also submitted that the court should exercise its dispensing power as the petitioners had mistakenly omitted to set out their full reasoning in the original request.

Permitted by statute 

In his decision, Lord Pentland said of the lack of any oral hearing: “With the benefit of hindsight it might have been preferable for there to have been an oral hearing in the Outer House given that both Lords Ordinary were minded to (and did) refuse permission to proceed. An oral hearing would have allowed the court’s concerns about the petitioners’ prospects of success to have been addressed in public and would have been in accordance with the normal expectation.”

However, he went on to say: “Be that as it may, there is no doubt that it was open to the Lords Ordinary to have proceeded in the way that they elected to do. The statutory scheme permitted them to refuse permission without holding an oral hearing.”

Explaining the statutory provisions further, he added: “One effect of the statutory provisions is that the absence of an oral hearing in the Outer House precludes the petitioners from exercising a right of appeal against the refusal of permission. In PA v Secretary of State for the Home Department (2020), this court held that the right of appeal under section 27D of the 1988 Act gives rise to a rehearing by the Inner House of the application for permission to proceed. The court observed that an appeal of that nature provides an additional safeguard for a petitioner, bearing in mind that the question of whether permission to proceed should be granted is one that falls to be decided as a preliminary issue.”

He concluded: “These are considerations which reinforce the desirability of having an oral hearing in the Outer House where the Lord Ordinary is considering refusing permission. Nonetheless the duty of this court is to give effect to the statutory provisions which the legislature has enacted. The provisions are clear and unambiguous. They do not allow for an appeal or reclaiming motion in the circumstances that have arisen in the present case.”

For these reasons, the petitioners’ reclaiming motion was refused.