Reclaiming motion seeking clarification on judicial review appeal rules refused as incompetent

The motion of Adeyimi Odutola Odubajo was brought as a test case in order to obtain a clear ruling on the meaning of the words “when the grounds giving rise to the application arose” contained in section 27A of the Court of Session Act 1988. 

The reclaiming motion was heard in the Inner House of the Court of Session by Lord Glennie, Lord Woolman, and Lord Pentland.

Question of competence 

The petitioner lodged a petition for judicial review on 6 September 2019, three months and one day after the date, 5 June 2019, on his decision letter from the respondent, the Secretary of State for the Home Department. He received the letter on 7 June 2019.

The time limit on commencing judicial review proceedings, as set out by the 1988 Act, is three months, although the court has a discretionary power to extend it. Following an oral hearing, the Lord Ordinary considered that the date on which the grounds giving rise to the application arose was the date on the decision letter and granted an extension on the time limit.

The petitioner sought leave to reclaim against the Lord Ordinary’s interlocutor, challenging his finding that the date on which the grounds arose was 5 June 2019. It was noted that there were conflicting decisions regarding whether “when the grounds giving rise to the application arose” in the 1988 Act referred to the date on which the decision was made or when the applicant received notification of it. If it was the latter, then the petitioner’s application would have been made timeously.

The Inner House raised with the parties the question of whether the reclaiming motion was competent in terms of the 1988 Act. It was submitted for the petitioner that the motion was brought in terms of section 28, which allows a party dissatisfied with an interlocutor pronounced by the Lord Ordinary to reclaim against it. This was a broad provision and not disapplied by anything in section 27D, which covered refusals.

Counsel for the respondent agreed that the motion was competent. He submitted that sections 27A to D provided a complete code governing issues relating to permission itself. However, the normal reclaiming rules applied in other circumstances arising from a permission decision, such as where a party had been granted permission to proceed on the basis of an extension of the three-month period and contended that such an extension was unnecessary because the petition was not truly time-barred.

Comprehensive code 

The opinion of the court was delivered by Lord Pentland. He began by explaining the legislative context behind the relevant provisions of the 1988 Act as amended, saying: “It is clear that the intention behind section 89 of the Courts Reform (Scotland) Act 2014, which added sections 27A to D, was to introduce a comprehensive and self-contained statutory code governing all aspects of the procedure for obtaining permission for applications to the supervisory jurisdiction of the Court of Session. […] These reforms were proposed in the Report of the Scottish Civil Courts Review.”

He continued: “It recommended that if leave was refused in the Outer House ‘there should be a right of appeal, within 7 days, to the Inner House which would look at the petition anew’. The review did not recommend that the respondent should have a right of appeal against the granting of leave.”

On the intent of the provisions, he said: “It is obvious that the legislative intention was to create a new stand-alone scheme requiring permission to be obtained to proceed with an application for judicial review; the scheme was to cover all aspects of the permission stage, including appeal rights. It was to be comprehensive. The policy intention was for the new system to be speedy and efficient.”

He continued: “There is nothing to suggest that instead of an appeal he or she could choose to reclaim under the old rules. There is nothing to suggest that a respondent would be able to appeal against a grant of leave. There is nothing to suggest that an applicant who had been granted leave, like the present petitioner, could nonetheless reclaim because he was dissatisfied with a finding that the time limit for bringing proceedings had expired.”

Evaluating the submissions of both parties, he said: “[If] section 28 of the 1988 Act applied to at least some aspects of or issues arising from decisions on permission, it is impossible to see what the purpose of section 27D would be. There would then be two separate avenues of appeal with different time limits. A respondent could reclaim against a decision to grant permission. A petitioner could ignore the 7 day time limit and elect instead to enroll a reclaiming motion. That would not make sense. The appeals system would be incoherent and potentially become chaotic. That is not an outcome that the legislature can reasonably be taken to have intended.”

For these reasons, the reclaiming motion was refused on the ground of incompetence.