Scottish Court of Session Decisions

In this petition for judicial review the petitioner seeks to challenge steps said to have been taken by the respondents in connection with the administration of the transfer list of applicants seeking local authority housing accommodation from the respondents. It appears that as part of the procedure for allocating housing the respondents and their statutory predecessor - Glasgow District Council - award applicants points in respect of various matters. Among the matters in respect of which points are so awarded is the period of time for which an applicant has been on the waiting list. That species of points are apparently referred to as "date points". The complaint made by the petitioner is that at some time in about September 1995, after she had removed from a house in Allander Street, Glasgow, the respondents removed or cancelled the date points which the petitioner says she had accumulated by that time.

When first presented the petition contained averments to the effect that the petitioner had been the tenant of that house in Allander Street, her landlord being Glasgow District Council and latterly the respondents. The house was to be demolished and she needed to find other accommodation which resulted in her accepting a tenancy from a housing association (Hawthorn) in about September 1995. In their Answers the respondents averred that the tenant of the Allander Street house had in fact been the petitioner's husband. In adjustments to the petition made in response to those averments it now appears to be accepted on behalf of the petitioner that the tenancy of that house was in her husband's name. However averments are also made by the petitioner to the broad effect that she and her husband were jointly on the transfer waiting list and that the respondents and the Glasgow District Council had treated them as a couple for the purpose of allocating housing.

The respondents dispute the petitioner's ever having held points - solely or jointly - but it is not necessary for me to examine their position as regards the substance of that dispute since at the continued first hearing before me counsel were agreed that argument would not be directed towards the substantive relevancy of the petition or of the answers but would be confined to certain pleas-in-law for the respondents which fall broadly into two chapters namely:

In advancing his submission under Chapter I of the argument counsel for the respondents submitted under reference to the opinion delivered in Swan v Secretary of State for Scotland 1998 SC 479, 487B-C that it was generally recognised that proceedings for judicial review must be brought promptly. Judicial review was an equitable remedy and the Court had a discretion in the matter (Perfect Swivel Limited v Dundee District Licensing Board (No 2) 1993 SLT 112, 113E-F). In King v East Ayrshire Council 1998 SLT 1287 at 1291 the Court had accepted "that in general applications for judicial review should be made at the earliest possible opportunity and a failure to do so may well lead to an inference of acquiescence which will be fatal to the application". In the same case the Court had referred to the public interest in good administration and counsel submitted that the Court should not entertain an application for judicial review where, by reason of delay, to do so would be contrary to the principles of good administration. Reference was also made by counsel to R. v Dairy Produce Quota Tribunal for England and Wales ex parte Carswell [1990] 2 AC 738.

In light of those authorities counsel for the respondents submitted that taken by itself the delay involved in the present case meant that the Court should exercise its discretion to decline to entertain the petition on its merits. Looking at the history of matters, the alleged action complained of was averred to have occurred in September 1995. Nothing appears to have been done by the petitioner until June 1997 when, it was accepted, the petitioner had taken up the issue of the alleged loss of date points with her local councillor but had abstained from legal proceedings. There had been some correspondence in the summer of 1998 between the respondents and solicitors instructed on the petitioner's behalf but it was not until July 1999 that the petition had actually been served. Accordingly, said counsel, the application for judicial review had not been made promptly; no satisfactory explanation had been offered for delay; and the delay was detrimental to good administration since certain records held by the respondents had been passed to Hawthorn and could no longer be traced by Hawthorn. A public authority should be able to dispose of its records at some point in time without the risk of being prejudiced in its subsequent defence of judicial review proceedings.

Thus invoking the passage of time, the discretionary and equitable nature of judicial review, and the interests of good public administration Mr McKinnon put forward as his primary leading submission that the respondents' sixth plea-in-law should be upheld and the petition dismissed.

Alternatively, in the event of failure of that submission counsel advocated, with what he himself described as diffidence, the upholding of plea-in-law 8, directed towards mora taciturnity and acquiescence. In that connection counsel referred to Atherton v Strathclyde Regional Council 1995 SLT 557, particularly at 558L, and to Conway v The Secretary of State 1996 SLT 689. Counsel explained his diffidence in inviting the upholding of the plea relating to mora at this stage by reference to the view expressed by the Lord Ordinary in Conway that the plea of mora taciturnity and acquiescence could not be determined on simple legal argument at the bar, the essential ingredient of the plea being prejudice which must be proved by evidence. Counsel did not really question the correctness of that view. The prejudice to which counsel alluded was the prejudice said to arise by the inability of Hawthorn to trace the file which the respondents had passed to Hawthorn. Insofar as plea-in-law 5 referred to the respondents having suffered prejudice through the delay I did not understand counsel for the respondents to place it in any essentially different position from plea-in-law 8.

In responding to the submissions advanced by counsel for the respondents in respect of the first chapter of the argument, ie delay, Mr Sutherland, who appeared for the petitioner, indicated that he did not really dispute the propositions which counsel for the respondent had sought to draw from the authorities cited by him. Circumstances could clearly arise in which delay in bringing proceedings for judicial review would prevent the application from proceeding on its merits. However, the circumstances of the present case were different and did not lead to that result.

Counsel observed, by way of preface to his submissions, that while it may be technically correct that the tenancy was in the petitioner's husband's name she had always dealt with the respondents and their predecessors and was, on her averment, named jointly with her husband on the transfer waiting list. As a spouse she had an interest in the jointly accumulated points.

As regards more particularly the history of matters, counsel for the petitioner in the course of his submissions brought to the Court's attention that, although no reference to it was made in the respondent's adjusted pleadings, among the productions produced by the respondents was documented reference to an interview at which in 1995 an official of the Housing Department had supposedly advised the petitioner and her husband that acceptance of the tenancy offered by Hawthorn might result in the loss of points. However, said counsel, whatever may have transpired at that interview the matter of loss of points only became of significance in 1997 when the petitioner's husband made an application to the respondents for a house for himself, the petitioner and their children. At that time - as is noted at the rear of the form (7/8 of process) - he considered that "they" (scil. he and his spouse) should have date points. That application was made early in June 1997. Thereafter, in the same month, the petitioner - as was accepted by the respondents in their adjustments - raised the matter with her local councillor. Satisfaction not having been obtained by that means the petitioner consulted solicitors in June 1998 which led to the issue being partially ventilated in correspondence passing between those solicitors and the respondents (see 6/1 to 6/6 of process). The final letter in that interchange was dated 8 October 1998 and was sent by the respondents in reply to the petitioner's solicitor's letter of 2 October 1998 which had indicated that if the issue were not properly addressed, judicial review proceedings would be the only option. After referring to the solicitor's letter of 2 October 1998 the respondents' letter of 8 October continued as follows - "I note the contents of your letter and a reply will be made to you in due course." No response was sent. On 21 December 1998 legal aid was sought on the petitioner's behalf from the Scottish Legal Aid Board and intimation of the application was made to the respondents at about that time. Counsel was uncertain whether objections were lodged to the grant of legal aid but at all events legal aid was only granted on 1 June 1999. The petition was thereafter instructed and lodged in Court on 23 July 1999.

Against that timetable it could not be said that there had been inordinate delay sufficient enough to justify refusing to entertain the petition for judicial review. It had to be borne in mind that the petitioner was not a commercial or experienced litigant (cf. King v East Ayrshire Council at 1290L 1291C). Further, the action by the respondents which was under challenge did not have any true effect on third parties and this case was very different from such cases as Perfect Swivel or Atherton. The only prejudice suggested by the respondents was that some records had been passed by them to Hawthorn and could not now be located.

Turning to the argument as respects Plea 8 (mora taciturnity etc) and Plea 5 (prejudice), counsel stressed that the plea of mora taciturnity and acquiescence could only succeed in the event of delay leading to a belief that the petitioner was in acquiescence with a decision and consequently producing prejudice (Conway). In McPhail on Sheriff Court Practice (2^nd Ed.) para. 2.123 it was stated that the plea of mora taciturnity and acquiescence was one directed to the merits of the action and could only be sustained after proof. In any event the only prejudice claimed was difficulty in locating a file and it was not said that the passing of the file of Hawthorn occurred as a result of any mora or acquiescence on the part of the petitioner.

In chapter II of his submissions counsel for the respondent argued primarily that the respondents' ninth plea-in-law - all parties not called - should be upheld but in the course of discussion appeared to accept that the point at issue might also be couched in terms of title to sue (Plea 1).

Put shortly, the position appeared to be that the plea-in-law of no title to sue had proceeded on the initial view that only the husband as tenant had any claim to date points. The altered position of the petitioner to the effect that the points were jointly held had led to the tabling of the plea of all parties not called. If, as now contended by the petitioner, the points were jointly held by the petitioner and her husband, they were in a similar position to that of joint proprietors. The concurrence of the husband was necessary. Both should be the petitioning parties. At all events, service of the petition should be effected on the husband. Reference was made to Maxwell on Court of Session Practice, 148-149.

In his response to this chapter of the argument counsel for the petitioner questioned whether it was right, in relation to joint interests arising from joint inclusion on a housing waiting list, to assimilate administrative law to the law of joint property. The petitioner did not have a right of property in the date points. The points were simply part of an administrative scheme and in administrative terms her position in the future allocation of housing would be better if she were recognised as having the advantage conferred by the attribution of the points in question, irrespective of whether they might be seen as held jointly or singly. If the matter was of interest and benefit to her, it should not matter that it might also be of benefit to her husband. The respondents' pleas in issue should either be repelled or reserved pending inquiry.

I shall consider the two chapters of argument in turn.

In relation to the first chapter, while it is of course the case that judicial review proceedings ought to be brought promptly, it must also be borne in mind that decisions or actions susceptible of review by the Court in the exercise of its supervisory jurisdiction may be taken in a wide variety of fields and contexts. The effect of allowing an administrative decision to be re-opened or reversed after the passage of time may be very varied. To borrow the phraseology employed by Lord Goff of Chieveley in the Carswell case: "..applications for judicial review may occur in many different situations, and the need for finality may be greater in one context than in another" (749). Thus delay which is material in one context may not be so in another. Where the decision under attack is one which affects a number of third parties or where the attack is directed towards the validity of a scheme as a whole swift the action may be required (cf. Hanlon v The Traffic Commissioner 1988 SLT 802). Delay may also mean that the decision is spent and the petition thus academic as, for example, was the case in Marco's Leisure Limited v West Lothian District Licensing Board 1994 SLT 129. Or later decisions may have been taken on the basis that the decision which it is sought to impugn is valid and delay in such circumstances may also be fatal (cf. Atherton v Strathclyde Regional Council). However, in the present case counsel for the respondent was really unable to point to any feature of that kind. It was not, for example, suggested that allowing the petitioner's claim for restoration of date points would have any effect on third parties or disturb the scheme of housing allocations followed in the past or indeed have any retroactive effect. The prejudice invoked by counsel for the respondents was the loss of certain papers believed to relate to the petitioner and her husband (and to their case alone) which it was said had been passed to Hawthorn, the absence of which made investigation of this particular case more difficult. I was given to understand by counsel that the papers had been passed to Hawthorn shortly after the petitioner left Allander Street, that is to say some time in the autumn of 1995. It is difficult therefore to say that the papers were passed to Hawthorn in reliance on mora taciturnity or acquiescence on the part of the petitioner. Counsel for the respondents was also unable to say at what point in time the papers in Hawthorn's possession were misplaced, lost or destroyed.

It is also apparent from the narrative of events given by counsel for the petitioner (and not materially disputed by counsel for the respondents) that the respondents have been aware that the petitioner has been questioning the matter of the loss of the date points since June 1997 when the petitioner's husband raised the matter with an officer of the respondents and the petitioner herself took up the matter through her local councillor. The length of time over which the councillor was involved is not clear but at all events the petitioner pursued the matter in June 1998 through a solicitor. The matter was not satisfactorily resolved and the correspondence ended with the promise of a further reply from the respondents. When that was not furthcoming legal aid was promptly sought and the petition was raised very shortly after legal aid was granted. There is of course a period of delay between the autumn of 1995 when the points were allegedly removed and June 1997. While counsel for the petitioner properly felt he should refer to the documented statement that the petitioner and her husband were advised in the autumn of 1995 that they might lose their date points were they to accept the tenancy from Hawthorn, that matter is not made the subject of averment by the respondent and counsel for the petitioner also explained that the documented record of Mr Noble's interview in June 1997 indicated that he believed that "they" were entitled to date points. In considering whether the petitioner ought to have acted before June 1997, it is also relevant, in my view to bear in mind the passage in the Opinion of the Court in King v East Ayrshire Council at 1291B-C which points to the need for regard to be had to the availability of ready access to legal advice and the financial means of obtaining such advice, and the party's experience of litigation.

In light of these matters it is my opinion that sufficient circumstances have not been advanced by the respondents to justify the Court's refusing to entertain this petition on the simple ground that it comes too late. I shall therefore repel the sixth plea-in-law for the respondents.

As an alternative counsel for the respondents moved the upholding of his eighth plea-in-law but he did so with some diffidence recognising that prejudice required to be established and for that to be done enquiry might be necessary. In view of that recognition and considering also that the extent of any prejudice to the respondents from the inability to trace the Hawthorn papers, I do not consider that it would be appropriate to dispose of Plea 8, or Plea 5, at this stage and I shall therefore reserve those pleas.

Turning to the second chapter of the argument I can express my view briefly by saying that without further enquiry into the merits of the petition and the system operated by the respondents and their statutory predecessors, I consider it to be inadvisable to reach any concluded view on the merits of the pleas relating to title to sue and all parties not called at this stage and I shall therefore decline the motion to dismiss the petition at this stage on either of those bases. However, in view of the adjusted terms of the petition, I agree with counsel for the respondents to the extent that service of the petition should be effected on Mr Noble. I shall therefore appoint such service to be carried out in order that Mr Noble may have an opportunity of advancing any interest which he may have in the matter.

The result of the foregoing is that:

• I repel the respondents' sixth plea-in-law contained the adjusted Answers;
• I appoint the petitioner to serve a copy of the Petition and Answers as adjusted on Mr Brian Noble in common form with his having leave to lodge Answers, if so advised, within 21 days of that service;
• I reserve the remaining preliminary pleas pending further enquiry;
• I continue the first hearing of this petition to a date to be afterwards fixed, but not earlier than that by which Mr Brian Noble may lodge Answers should he be so advised.

Without prejudice to the content of any Answers which may be lodged by Mr Noble, the scope of that continued first hearing will be to determine future procedure. In order to assist discussion of that matter, I would invite each of the present parties to these proceedings, namely the petitioner and the respondents, to lodge in process and to intimate inter se seven days prior to that continued diet of this first hearing a minute stating: