Prisoner’s motion to amend pleadings prior to permission to proceed being granted ruled ‘incompetent’

The petitioner was seeking to amend the petition to bring his pleadings up to date after the original decision complained of had been superseded, but a judge in the Court of Session ruled that the petitioner would have to lodge a fresh petition after refusing permission to proceed.

Judicial review

Lady Stacey heard that Chong Wang had been granted legal aid to raise a petition for judicial review against the Scottish Ministers after he had been told on 26 April 2017 that he would not progress at that stage to the open estate.

The petition was lodged on 26 June 2017 but after it was served a new decision was made by the respondent on 26 July 2017, also to the effect that the petitioner would not progress to the open estate, albeit for different reasons from those in the decision made three months earlier.

The respondent provided answers to the petition and in terms of the Rules of Court the papers should then have been considered by a Lord Ordinary to decide whether or not permission should be granted to proceed, but the case was not put before a judge and so no decision was made.

On 24 August 2017 the agents for the petitioner drafted the minute of amendment, and intimated it to the respondent, which opposed the motion.

‘Correct remedy’

Counsel for the petitioner, Alan Caskie, submitted that the petition as lodged was “otiose”, as it did not refer to the decision of 26 July 2017, which was the one which kept the petitioner out of the open estate at present, but instead referred to the decision made on 26 April 2017, which had been “superseded”.

It was argued that it was “absurd” to require the court to decide whether or not to grant permission to proceed on the basis of a petition which was “no longer accurate”.

Counsel for the petitioner submitted that the “correct remedy” was to allow the minute of amendment, which consisted of averments about the decision made on 26 July 2017, rather than to require the petitioner to start again, which would cause “delay and expense”.

However, counsel for the respondent, Daniel Byrne, argued that any such motion was incompetent in light of section 27B(1) of the Court of Session Act 1988, which states that: “(1) No proceedings may be taken in respect of an application to the supervisory jurisdiction of the court unless the court has granted permission for the application to proceed.”

It was accepted that the decision complained of has been “overtaken by events” and that there was another decision, but it was submitted that moving a minute of amendment amounted to “taking proceedings”, which was prohibited by the section, as permission to proceed had not yet been granted.

Counsel for the respondent argued that the words of the section were clear; moving a minute of amendment must count as taking proceedings, which was “prohibited” by the words of section 27B(1).

‘Fresh petition’ required

The judge preferred the arguments of counsel for the respondent.

In a written opinion, Lady Stacey said: “I agree that the section in the 1988 Act as amended is plain in itself. It introduces a new step in judicial review. That step is described as a requirement for permission, before anything happens, in the petition that has been lodged.

“I accept that counsel for the petitioner was able to put forward an argument that it would save time and trouble to allow the minute of amendment. But I do not accept the further argument, that refusing the minute of amendment is absurd. It seems to me that it amounts simply to this.

“A petition in which the petitioner complains of the operative decision is required. The court is required to give a view whether the petition should proceed at all. If it does proceed then ultimately the court will be asked to adjudicate upon it. There needs to be a petition, which sets out the grievance of the petitioner. I am persuaded by counsel for the respondent’s arguments, which are essentially on statutory interpretation, that the statute is clear.

“In this case, the decision about permission had not been made. I decided that I would make that decision. I refused permission. That decision was made on the basis of all the information that was contained in the petition and in the answers. This petition should not proceed because there is no point in it proceeding. I am of the opinion that the petitioner will have to lodge a fresh petition, to bring the matter he wishes to discuss before the court.”