Scottish Court of Session Decisions

[1] In this petition for judicial review the petitioners, who all hold taxi licences issued by the respondents, seek certain orders relative to proceedings at a meeting of a sub-committee of the respondents which was held on 14 December 2000 and resulted in certain additional taxi licences being granted in the respondents' area. The petition presently proceeds on the narrative that at that meeting -

The petitioners seek reduction of "these decisions as being unlawful".

[2] Shortly before the first hearing the respondents lodged various documents, including a minute of the meeting of the sub-committee. Mr Dewar, who appeared for the petitioners but who had not drafted the petition, saw that minute only at a relatively late stage. He acknowledged that, having regard to its terms, the narrative in the petition was inaccurate insofar as it included the word "maximum". He also recognised that, in these circumstances, questions arose as to whether the committee had, in fact, made only one rather than two decisions and, if two, what precisely those decisions were and how they were related one to the other.

[3] At the outset of the first hearing Sir Crispin Agnew for the respondents was allowed to add to their answers a plea to the competency of the petition. Those answers already included a plea that the petitioners had no title to sue. I heard argument on those two pleas, which are interrelated. The argument directed to the competency plea was, broadly stated, that the petitioners, on whose behalf representations had been made to and considered by the sub-committee, had a statutory right under paragraph 18 of Schedule 1 to the Civic Government (Scotland) Act 1982 to appeal to the sheriff against the grant of the additional taxi licences; that the complaints which they now made in the petition were all complaints which could have been considered on such an appeal; and that the petitioners, having failed to exercise their statutory remedy, could not now competently seek redress by judicial review (O'Neill v Scottish Joint Negotiating Committee for Teaching Staff, 1987 SLT 648; Ingle v Ingle's Trustee, 1999 SLT 650). The title to sue plea proceeded on the basis that, if (as was denied) the petitioners' present complaints were not such as could competently have been the subject of a statutory appeal, they were of a kind in respect of which the petitioners had no title to sue. Having heard Sir Crispin in support of those pleas, I heard Mr Dewar in response. I did not hear argument on the merits of the petitioners' application.

[4] I have come to the view that I cannot satisfactorily at this stage either sustain or repel those preliminary pleas. In the first place, it appears to me to be essential that the petitioners identify with precision in their pleadings the decision or decisions of the sub-committee which they seek in these proceedings to impugn. The importance of doing so, as a prerequisite to the competency of any petition for judicial review, was recently emphasised by the Inner House in Docherty v Edinburgh Council 2000 GWD 26-1003, especially per Lord Prosser at para. [10] and Lord Marnoch at paras. [1] - [2]. The petition as presented proceeds on what is, to some extent at least, an inaccurate narrative of what the sub-committee decided. It will require amendment to focus with precision on any decision or decisions sought to be impugned. In that regard account will no doubt require to be taken of the terms of the minute of the meeting. In the second place, it appears to me to be more satisfactory in the circumstances of this case to hear argument on the merits before reaching a decision on the preliminary pleas. That is because such argument may assist in identifying the true nature of the petitioners' complaints and how they relate, if at all, to matters which could have been raised on a statutory appeal.

[5] In these circumstances I shall allow to the petitioners three weeks from today's date to adjust the petition and the respondents three weeks thereafter to adjust their answers (if so advised) in response. The first hearing will be continued to a date to be afterwards fixed for the purpose of hearing further argument, if appropriate, on the preliminary pleas and argument on the merits.