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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> RECLAIMING MOTIONS BY APRIL PRIOR, GORDON BURNS AND JOSEPH MILLBANK AGAINST THE SCOTTISH MINISTERS AND THE LORD ADVOCATE [2020] ScotCS CSIH_36 (30 June 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_36.html
Cite as: 2020 SC 528, [2020] CSIH 36, 2020 GWD 23-302, 2020 SLT 762, [2020] ScotCS CSIH_36
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Brodie
Lord Malcolm
[2020] CSIH 36
P514/18, P511/18 and P1136/17
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motions by
(1) APRIL PRIOR; (2) GORDON BURNS; and JOSEPH MILLBANK
against
Petitioners and Reclaimers
(1) THE SCOTTISH MINISTERS; and (2) THE LORD ADVOCATE
______________
Respondents
Petitioners and Reclaimers: O’Neill QC, Leighton; Drummond Miller LLP
Respondents: C O’Neill (Sol Adv); Scottish Government Legal Directorate
30 June 2020
Introduction
[1] In these reclaiming motions, the petitioners maintain that sections 27B to 27D of the
Court of Session Act 1988 require a Lord Ordinary, when considering a request for a review
of an earlier refusal by a different Lord Ordinary of permission to proceed in a petition for
judicial review, to appoint an oral hearing. Without such a hearing, there is no avenue of
appeal.
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2
[2] Before the Lord Ordinary, the petitioners had adopted a contrasting position. This
was that the legislation did allow a Lord Ordinary to refuse the request for a review, but that
this was contrary to the European Convention on Human Rights and thus outside the
legislative competence of the Scottish Parliament (Scotland Act 1998, s 29(2)(d)). They now
adopt that argument only as a “fall-back” position. On this alternative argument, they
would seek reduction of the statutory provisions and the rules of court, or at least a
declarator that they are unlawful. In respect of both the principal and the alternative
contentions, the petitioners seek reduction of the interlocutors in the original petition
processes which had refused their requests for a review.
[3] Issues of both substance and procedure arise. First, is it legitimate for the petitioners
to run an entirely different argument from that contained in their petitions and advanced
before the Lord Ordinary? Secondly, is it competent to review a judicial decision in a
petition process? In this context, if a separate action of reduction is required, does it follow
from the identification of an error of law that the interlocutors of the Lords Ordinary in the
original proceedings should be reduced? Thirdly, on a construction of the statutory
provisions, is it competent for the second Lord Ordinary to refuse a request for a review of a
refusal of permission without appointing an oral hearing? Fourthly, if the legislation does
provide that a petitioner may be refused permission without an oral hearing and hence a
right of appeal, is that compatible with the European Convention?
Statutory Provisions
Legislative history
[4] In September 2009, the Scottish Civil Courts Review (Vol I, p 265) recommended that:
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3
“152. A requirement to obtain leave to proceed with an application for judicial
review should be introduced, following the model of Part 54 of the Civil Procedure
Rules in England and Wales. … The papers should be considered by the Lord
Ordinary, who will not normally require an oral hearing. If leave is refused, or
granted only on certain grounds ... the petitioner should be entitled to request that
the matter be reconsidered at an oral hearing before another Lord Ordinary. There
should be a further right of appeal to the Inner House…”.
The purposes of a permission stage were stated (Vol II, p 35) to be, inter alia, the prevention
of unmeritorious claims from proceeding, thus creating additional capacity to expedite the
resolution of other cases.
[5] Chapter 12 explained the recommendation in more detail:
“42. One model suggested by respondents is the introduction of a procedure
similar to that in England and Wales, where the court’s permission is required before
a claim for judicial review can proceed. …The papers are then considered by an
Administrative Judge, who will generally consider the question of permission
without holding an oral hearing. If permission is refused the claimant is entitled to
request, within 7 days, that the matter be reconsidered at an oral hearing. A right of
appeal lies to the Court of Appeal against a refusal to grant permission…
…
51. …The Lord Ordinary will decide whether the petitioner has an arguable case.
If leave is refused, or granted on certain grounds... the petitioner should be entitled
to request, within 7 days, that the matter be reconsidered at an oral hearing before
another Lord Ordinary. If leave is refused, there should be a right of appeal, within 7
days, to the Inner House which would look at the petition anew…”.
[6] In England and Wales, section 31(3) of the Senior Courts Act 1981 provides that an
application for judicial review cannot be made unless the leave of the High Court has been
obtained in accordance with rules of court. Rule 54.4 of the Civil Procedure Rules
(1998/3132) mirrors the Act. The courts in England and Wales may grant (CPR, r 54.10) or
refuse (ibid, r 54.12) permission to proceed. That decision is generally made without an oral
hearing (Practice Direction 54A, para 8.4). In respect of refusals, the claimant cannot appeal,
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but he can request that the decision be reconsidered at an oral hearing (ibid 54.12(3); R (MD
the time of the SCCR, the first instance judge could not, as is now possible, decline to have
an oral reconsideration. That can now be done by the judge certifying that the claim is
“totally without merit” (CPR, rr 23.12 and 54.12(7); cf R (Wasif) v Secretary of State for the
Home Department [2016] 1 WLR 2793). Where there is such certification, the claimant may
apply directly to the Court of Appeal for permission to appeal. That application is likely to
be considered only on the papers by a single judge of that Court (CPR r 52.5 and 52.8(2)).
The new sections
[7] Sections 27B to 27D of the Court of Session Act 1988 were introduced by section 89 of
the Courts Reform (Scotland) Act 2014 with effect from 22 September 2015. They provide as
follows:
“27B Requirement for permission
(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.
(2) …the Court may grant permission… only if it is satisfied that—
…
(b) the application has a real prospect of success.
...
(4) The Court may grant permission… for an application to proceed –
…
(b) only on such of the grounds… as the Court thinks fit.
(5) The Court may decide whether or not to grant permission without an oral
hearing … .
27C Oral hearings where permission refused, etc.
(1) Subsection (2) applies where …—
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(a) the Court—
(i) refuses permission … or
(ii) grants permission… only on particular grounds, and
(b) the Court decides to refuse permission, or grant permission as
mentioned in paragraph (a)(ii), without an oral hearing ... .
(2) The person making the application may, … request a review of the decision at
an oral hearing.
(3) A request under subsection (2) must be considered by a different Lord
Ordinary …
(4) Where a request under subsection (2) is granted, the oral hearing must be
conducted before a different Lord Ordinary from the one who refused or so granted
permission.
(5) At a review ... the Court must consider whether to grant permission; ...
(6) Section 28 does not apply—
(a) where subsection (2) applies, or
(b) in relation to the refusal of a request made under subsection (2).
27D Appeals following oral hearings
(1) Subsection (2) applies where, after an oral hearing…, the Court—
(a) refuses permission
…
(2) The person making the application may … appeal… to the Inner House (but
may not appeal under any other provision of this Act).
(3) In an appeal under subsection (2), the Inner House must consider whether to
grant permission …
…”.
Section 28 of the 1988 Act provides a general right of a party to reclaim any interlocutor of a
Lord Ordinary “except as otherwise prescribed” (eg by s 27C(6)).
Policy Memorandum, Explanatory Notes and Ministerial Statements
[8] The original Policy Memorandum which accompanied the Bill, as introduced to
Parliament, stated:
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“173. [The SCCR]... recommended that ‘A requirement to obtain leave to proceed
with an application for judicial review should be introduced, following the model of
Part 54 of the Civil Procedure Rules in England and Wales’. The respondent should
be entitled to oppose the granting of leave. The papers should be considered by the
Lord Ordinary, who will not normally require an oral hearing. If leave is refused, or
granted only on certain grounds ... the petitioner should be entitled to request that
the matter be reconsidered at an oral hearing before another Lord Ordinary. There
should be a further right of appeal to the Inner House. …
…
187. The procedure provided… allows a Lord Ordinary to take the initial decision
on permission on the basis of the papers lodged either as a paper exercise or after an
oral hearing. If permission is refused ... and an oral hearing was not held, the
petitioner is entitled to request an oral hearing. The request and the oral hearing that
is heard if the request is granted will be dealt with by a different Lord Ordinary.
There is a right of appeal to the Inner House in relation to a refusal of permission ...
following an oral hearing.”
The Revised Explanatory Notes to the Bill as passed state:
“137. The request for review requires to be considered by a different judge. Section
27C(6) provides that section 28 of the 1988 Act does not apply where there is a right
to request a review at an oral hearing. In other words, there is no right of appeal to
the Inner House against a decision made under section 27B – an applicant who
wishes to challenge the decision must request a review under section 27B(2).
Similarly, there is no right of appeal to the Inner House if the judge refuses the
request for a review.”
[9] During the passage of the 2014 Act, there were some ministerial comments about the
purpose of the new sections. On 17 June 2014, during the Stage 2 debate before the Justice
Committee, the Minister for Community Safety and Legal Affairs resisted certain
amendments which would have deprived the reforms of their purpose, namely reducing the
disproportionate amount of court time that was being taken up with unmeritorious
petitions. Although at certain points, the Minister referred to there being a right of appeal
from a refusal to grant permission to proceed, this was corrected to there being such a right
only when the refusal had occurred after an oral hearing (see cols 4715-16). On 7 October
2014, during the Stage 3 Debate, the Cabinet Secretary for Justice stressed that refusals of
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permission were not arbitrary decisions. The Bill envisaged that permission would be
sought first on the basis of the papers and then on review at an oral hearing. If permission
was again refused, the case could be appealed. If a case were potentially arguable but, after
up to three separate assessments, it did not appear to have a real prospect of success, the
case should not be allowed to proceed.
The Rules and Practices of the Court
RCS
[10] In order to give effect to sections 27B to 27D of the 1988 Act, the rules of court were
amended by: (i) the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (No 3)
(Courts Reform (Scotland) Act 2014) 2015; and (ii) the Act of Sederunt (Rules of the Court of
Session 1994 Amendment) (Withdrawal of Agents and Judicial Review) 2017. Chapter 58 of
the RCS now reads:
“The permission stage
58.7.—(1) … the Lord Ordinary must—
(a) decide whether to—
(i) grant permission (including … only on particular grounds);
… or
(b) order an oral hearing ….
…
(2) Where permission is refused (or permission is granted … only on
particular grounds) without an oral hearing, the Lord Ordinary must give reasons… .
…
The permission stage: requesting an oral hearing
58.8.—(1) A request to review a decision made without an oral hearing, under
section 27C(2) of the Act of 1988, is made in Form 58.8.
(2) Where a request is granted, the oral hearing must take place within 7 days.
…
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The permission stage: oral hearing
58.9.—(1) Except on cause shown, an oral hearing must not exceed 30 minutes.
(2) Where permission is refused (or permission is granted … only on
particular grounds) at an oral hearing, the Lord Ordinary must give reasons… .
The permission stage: appeal to the Inner House
58.10. An appeal under section 27D(2) of the Act of 1988 (appeals following oral
hearings) is made by reclaiming motion (see rule 38.8(d)).”
Form 58.8, which is headed “Form of Request for Review”, contains a statement that the
petitioner is requesting a review of the decision of the Lord Ordinary.
Practice Note No. 3 of 2017
[11] On 13 June 2017, the court issued Practice Note No. 3 of 2017 on Judicial Review. It
makes clear (para [2]) that it is not mandatory. A Lord Ordinary may disapply its provisions
in a particular case. The purpose of the Practice Note is to provide guidance and to set out
the court’s expectations about how judicial reviews will be conducted. Under the heading
“The permission stage”, it provides that:
“12. The Lord Ordinary must make a decision on whether to grant or refuse
permission or order an oral hearing (RCS 58.7). The Lord Ordinary will ordinarily
order an oral hearing if considering refusing permission. In that event, the Lord
Ordinary will normally produce a brief note that sets out the concerns which are to
be addressed at the hearing. This will assist parties and the court in ensuring that
hearings do not exceed 30 minutes (RCS 58.9).
13. Where permission is refused (or permission is granted subject to conditions
or only on particular grounds) without an oral hearing, the petitioner may request a
review of the decision at an oral hearing (RCS 58.8). A reclaiming motion to the
Inner House may only be made following an oral hearing.”
The Procedural Background and the Lord Ordinary’s decision
[12] Each of the three petitioners had previously raised petitions for judicial review. One
of them, Ms Prior, was partially successful. Her remaining grounds of challenge, and all of
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9
those of Mr Millbank and Mr Burns, were refused permission to proceed. No oral hearings
were appointed. The petitioners’ requests for a review of the refusals were in turn refused
without an oral hearing. The subject matter and merits of each petition, and the Lords
Ordinary’s substantive reasons for refusing both permission and the requests for a review,
are not relevant.
[13] Each petitioner, aggrieved at the refusal of their requests for a review, raised the
present petitions for judicial review of the earlier decisions. In Ms Prior‘s petition, the Lord
Ordinary granted permission to proceed in respect of arguments based on Articles 5, 6 and 8
of the European Convention. She refused permission in respect of those based on article 10
and the common law. In Mr Millbank’s and Mr Burns’ petitions, the Lord Ordinary granted
permission in relation to challenges based on Article 6 on its own and in conjunction with
article 14, but refused permission in respect of those based on Articles 5 and 8 and the
common law.
[14] It was accepted that the initial decision under section 27B could be made without an
oral hearing. That was expressly provided (s 27B(5)). The challenge, as presented to the
Lord Ordinary, was that an incompatibility with the Convention arose where the refusals
denied a petitioner not only an oral hearing but also a right of appeal. The petitioners sought
reduction of the legislation and the associated RCS, and a declarator of unlawfulness in the
alternative in respect of the legislation. They also sought reduction of the interlocutors in
the earlier petitions.
[15] The Lord Ordinary raised the question whether, if she were to find an
incompatibility, she required to read the legislation compatibly, in line with the interpretive
obligations in section 101 of the Scotland Act 1998 and section 3 of the Human Rights Act
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1998. Contrary to their position in the reclaiming motion, the petitioners maintained that the
legislation did not allow this. The respondents’ position was that the provisions could be
read down in a variety of ways whereby the incompatibility, which the petitioners
contended existed, could be cured.
[16] The Lord Ordinary held that the legislation was compatible with Article 6 on its own
and in conjunction with article 14. The petitioners had not submitted that Articles 5 or 8,
which they had founded on in their petition, involved more stringent requirements. They
were not considered separately. If there had been a violation of the Convention, the Lord
Ordinary would have read down section 27C(3) in these terms:
“(3) A request under subsection (2) must be granted by a different Lord Ordinary
...”.
The Lord Ordinary found that reduction of the earlier interlocutors was not a competent
remedy in a petition for judicial review. The remedy was a petition to the nobile officium.
She expressed no view on whether reduction would necessarily follow.
Submissions
Petitioners
[17] The primary basis of the petitioners’ challenge was that the legislation and rules
guaranteed a petitioner an oral hearing on the issue of permission and a right of appeal in
the event of a refusal. The current practice of the Lords Ordinary was that it was competent
to deny a petitioner an oral hearing and a right of appeal. This was contrary to the
legislation. Sections 27B to 27D of the 1988 Act required an oral hearing on the issue of
permission. Statistical information for 2018 showed that 70% (91/131) of review requests
were refused without an oral hearing. In 42 cases (32%) permission was granted after an
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oral hearing. Only four cases (3%) involved a refusal after an oral hearing. In 2019, 47.5%
(28/59) of requests for a review were refused without an oral hearing. Eighteen (30.5%) were
granted permission after an oral hearing. Only 13 (22%) were refused permission after an
oral hearing. This indicated that having an oral hearing was an advantage. The practice in
the Outer House contravened the guidance in Practice Note No. 3 of 2017 (Dinsmore v
Scottish Ministers [2019] CSOH 18, at para [19]).
[18] The correct interpretation was that the first Lord Ordinary may decide the issue of
permission on the papers or after an oral hearing, although the Practice Note envisaged that
the Lord Ordinary will ordinarily order a hearing if considering refusing permission. Only
if a request for a review at an oral hearing is not made in accordance with the formal
requirements and within the time limit, could it be summarily refused by a different Lord
Ordinary. The problem was that the Lords Ordinary thought that section 27B(5) (grant or
refusal without an oral hearing) applied to this second stage, when it did not. The real
problem was the denial of an appeal. Appeals were incredibly important. A judge could get
something wrong. The current practice enabled the second judge to rubber stamp the first
judge’s decision; a procedure smacking of tyranny. It was important, especially in cases
involving asylum seekers, prisoners and those with mental health difficulties, that justice
was seen to be done openly and fairly. Oral hearings were at the heart of Scottish civil
procedure. Efficiency and speed did not trump justice and fairness (R (Detention Action) v
First-tier Tribunal (I&AC) [2015] 1 WLR 5341 at para 22).
[19] It was not open to the second Lord Ordinary to decide the substance of the review
without granting the request for review at an oral hearing. Whether to grant permission
could only be decided by the second Lord Ordinary after an oral hearing. At that hearing,
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the second Lord Ordinary would consider the test of a real prospect of success. The review
procedure under section 27C differed from the initial consideration under section 27B. On a
review, the petitioner had an opportunity to address, both in the written review application
and at the oral hearing, any weaknesses in the petition which had led the first Lord
Ordinary to refuse or limit permission. The right of appeal to, and a hearing before, the
Inner House, was preserved by section 27D.
[20] This reading of the statute would bring the practice of the Outer House into line with
Parliament’s intention. It was seeking to implement the recommendation of the SCCR to
introduce a permission stage along the lines of the procedure, which applied in England and
Wales, which provided a petitioner with a right to renew the application orally before
another judge. The provisions had to be read in this way, because that was the legislative
[21] In England and Wales, the Administrative Court determined applications without an
oral hearing. Only where permission was refused on the papers and the judge certified that
the application was “totally without merit” were claimants deprived of their right to a
reconsideration by another judge at an oral hearing (CPR 54.12(7)). The importance of an
oral hearing was emphasised in several English cases (R (MD (Afghanistan)) v Secretary of
State for the Home Department (supra), at para 23; R (Siddiqui) v Lord Chancellor [2019] EWCA
(Wasif) v Secretary of State for the Home Department (supra) at para 17(3)). There was a right to
appeal against the refusal of permission and the certification. The claimant could make an
application to the Court of Appeal for permission to appeal. The CPR were amended in
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2016 to remove the right to an oral renewal hearing in the Court of Appeal unless the judge
of that Court thought that the application could not be fairly determined without an oral
hearing.
[22] The Lord Ordinary had erred in considering that permission to proceed would be
refused if the petition was “totally without merit”. This was a test introduced for
exceptional cases in England and Wales. It was not a criterion or separate category to be
considered by Lords Ordinary in determining permission or a request for a review. The
only substantive threshold was “real prospect of success”.
[23] If the court accepted the petitioners’ primary submission, the appropriate remedy
was to recall the interlocutors which refused the requests for a review in the petitioners’
original petitions. The Inner House could exercise its powers to remedy any deficiency in
courts below (Davidson v Scottish Ministers (No 2) 2003 SC 103) by using the court’s nobile
at para [2]; Thomson: The Nobile Officum at 21) or its inherent powers (Hepburn v Royal
Alexandra Hospital 2011 SC 20 at para [19]-[20]). Procedural niceties should not stand in the
[24] If the court took the view that there was no right to an oral hearing and, therefore, no
right of appeal, then the 1988 Act was incompatible with the right of access to a court under
Article 6 (Zubac v Croatia (2018) 67 EHRR 28 (GC)). Whether the requirements of Article 6
were met depended on a consideration of the nature of any filtering procedure and its
significance in the context of the proceedings as a whole (Hansen v Norway (2014) 39 BHRC
89 at paras 71-74). The statistics revealed a disproportionate systematic interference with the
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right of access to a court. Exceptional circumstances were needed to deny a party an oral
paras 74-77 citing Nunes de Carvalho e Sá v Portugal, unreported, App 55391/13, 6 November
2018 at paras 190-191).
[25] An appeal had been intended by the SCCR (ch 12, para 51) and was, in the Lord
Ordinary’s view, removed from the proposals when they became legislation (Policy
Memorandum, at paras 186-189). A less intrusive measure, that is one allowing either an
appeal or an oral hearing, could have been used. The balance could and should have been
Through the combination of being denied an oral hearing and a right to appeal, the very
essence of the right of access to the court had been impaired (Golder v United Kingdom (1979-
80) 1 EHRR 524, para 36). The appropriate remedies were recall of the Lords Ordinary’s
interlocutors which refused the present petitions, reduction of the interlocutors refusing the
requests for a review in the original petitions, declarators of unlawfulness and reduction of
the statutory provisions and court rules.
Respondents
[26] The respondents contended that sections 27B to 27D of 1988 Act, and the associated
RCS, allowed the judges at first instance to refuse permission for a judicial review to proceed
without an oral hearing or a right of appeal. The argument, that the Lord Ordinary’s
decision was vitiated because she adopted the interpretation of the legislation which was
contained in the premise of the petitions, was a complete departure from the case at first
instance. It was not supported by a plea-in-law or reflected in any of the orders sought. It
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should be refused on that basis. It was not merely a new argument (cf Varney (Scotland) Ltd
[27] The submission now presented, that the legislation provided for an oral hearing, was
incorrect. Section 27C(4) provided that the Lord Ordinary could grant or refuse a request for
a review in terms of section 27C(3). The power to refuse a request for review was not
constrained in the manner contended for by the petitioners. Where such a request was
refused, that was the end of the petition. The second Lord Ordinary was not limited to
considering whether the relevant formal requirements had been followed. Section 27C(4)
was not limited in that way either expressly or impliedly. The second Lord Ordinary should
have regard to the test for permission (Wightman v Secretary of State for Exiting the EU (supra),
at para [9]), when considering whether to grant a request for an oral hearing.
[28] To the extent that the petitioners found on the contrary intention of the Scottish
Parliament, the challenge was unfounded. The petitioners did not plead or argue before the
Lord Ordinary that Parliament had intended that, in every application for judicial review,
there should be a right to an oral hearing and a right of appeal. There had been no
suggestion that the Scottish Parliament legislated in error. The Policy Memorandum (para
187) reflected an understanding that the request for a review at an oral hearing might be
refused. The policy objective of the permission stage would be compromised if there were a
guarantee of an oral hearing and an appeal. The Lord Ordinary correctly observed that that
would diminish the effectiveness of the measure, insofar as it was directed at avoiding the
expenditure of resources, which included the costs of both parties and the court, associated
with the holding of a hearing on unmeritorious claims.
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[29] The statutory provisions did not violate article 6. There was no requirement for the
sifting mechanism to guarantee an oral hearing. It was common ground that the decision to
grant or refuse permission was not a determination of a petitioner’s civil rights and
obligations for the purposes of Article 6. It was a procedural step which had to be taken
before a petition could progress. It was a procedural hurdle capable of being characterised
as a restriction on a party’s access to the court (H v United Kingdom (1985) 45 DR 281). The
right of access to the court may be limited, provided that it did not impair the very essence
of the right, and pursued a legitimate aim which had a reasonable relationship of
citing Golder v United Kingdom (1979-80) 1 EHRR 524, Ashingdane v United Kingdom (1985) 7
on the papers was a permissible limitation (Bhamjee v Forsdick (supra), para 33; cf R (Wasif) v
Secretary of State for the Home Department (supra)).
[30] Sections 27B to 27D, and the manner in which they were given effect, did not impair
the very essence of a petitioners’ right of access to the court. The procedure involved an
application to the court, and consideration by the court against the legal tests set out in
statutory provisions which set out criteria for permission. At each stage the Lord Ordinary
was required to determine whether the application had a real prospect of success (1988 Act,
s 27B(2)(b)). That test was intended to sift out unmeritorious cases, but not to create an
unsurmountable barrier which would prevent what could be a weak case being fully argued
envisaged that a second Lord Ordinary must address whether or not an oral hearing should
be held.
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[31] An absolute requirement for an oral hearing, whether at first consideration or on
review, would reduce the effectiveness of permission in minimising the impact on resources
of the court and the parties of unmeritorious applications, by unjustifiably prolonging an
apparent uncertainty about the lawfulness of a challenged decision (R (Wasif) v Secretary of
State for the Home Department (supra), para 16). Even in substantive proceedings in which the
protections of article 6 apply, the right to an oral hearing was not absolute (Pursiheimo v
fortiori it was not absolute in the context of a filtering mechanism such as the permission
stage. A decision on permission did not attract the procedural protections of article 6, which
in any event did not guarantee such a right (cf Delcourt v Belgium (1979-80) 1 EHRR 355).
Where a right of appeal was created by statute, limitations on the exercise of that right,
exclusion of a right of appeal in the legislation was legitimate and proportionate.
[32] The Lord Ordinary clearly understood that the test for permission was that of “real
prospect of success” (cf Wightman v Advocate General (supra), para [9]). She drew on the
language of “totally without merit” merely by analogy and did not consider it was relevant
to the test for permission, but to whether an oral hearing should be ordered.
[33] Reduction of an interlocutor of a Lord Ordinary in a petition for judicial review was
for Glasgow 1917 SC (HL) 1, at 6-7). This is not a mere question of procedure, but one of the
scope of the supervisory jurisdiction of the court. Even if the Lords Ordinary had erred in
law by refusing permission without an oral hearing, the court would still have to be satisfied
that reduction was necessary to prevent oppression and injustice (Helow v Advocate General
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(supra), at para 2). If an oral hearing would not have made any difference, reduction would
be refused. The petitioners were, by invoking the nobile officium, trying to create an appeal
against a discretionary decision when no such right of appeal existed. That was
Edwards: Judicial Review para 3.09; Thomson: The Nobile Officum at 102).
[34] The statistical material did not assist in resolving the legal issues. Although in 2018
65% (91/138) of applications had been refused without an oral hearing, in 2019 only 47%
(28/59) had been refused. In 2019, a much larger number of petitions (99/263) had oral
hearings appointed. Out of 263 petitions in 2019 only 28 had been refused permission
without an oral hearing.
Decision
The Pleadings
[35] The petition for judicial review was introduced as a potentially “speedy and cheap”
method of reviewing the actions of public authorities in the wake of the remarks of Lord
which is intended to combine the flexibility of petition procedure, especially in relation to
remedies (RCS 58.13.(2)(b)), within the context of an otherwise adversarial system. The form
of petition is prescribed (Form 58.3). It must contain averments of fact, similar to those in an
ordinary action. It then departs radically from the customary rules of written pleading by
requiring the petitioner not only to formulate appropriate pleas-in-law but also to set out,
albeit “briefly”, “the legal argument with reference to enactments or judicial authority” on
which it is intended to rely.
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[36] The nature of the grounds of challenge which a petitioner wishes to advance should
be readily ascertainable within the averments of fact and legal argument. That has been
done in each of the three petitions. These averments are, in large measure, repeated in each
petition. The petitioners request reduction of sections 27B-D of the Court of Session Act
1988 and RCS 58.7-10 (sic), or alternatively a declarator of their unlawfulness, in so far as
these provisions do not permit an oral hearing and/or a right of appeal in some cases. In
addition, there is a crave for reduction of the interlocutors of the Lords Ordinary in the
original petitions which refused the requests for a review of the refusal to grant permission
to proceed without an oral hearing. The petitioners’ pleas-in-law mirror the nature of the
remedies sought. The pleadings reflect the issues which were determined by the Lord
Ordinary; that is whether the statutory sections and the RCS were incompatible with, inter
alia, Articles 6 and 14 of the European Convention and the common law principle of open
justice.
[37] The respondents take exception to the petitioners being able to advance a quite
different argument from that which is contained in the pleadings and was argued before the
Lord Ordinary. There is considerable force in this objection. Rules of procedure are an
important element in the judicial system. It is not a question of efficiency or speed trumping
fairness and justice. The need to determine cases expeditiously and to achieve finality is not
a separate or subordinate consideration to the interests of justice. Expedition and finality are
not opposed concepts to fairness and justice but are integral parts of them (see Toal v HM
Advocate 2012 SCCR 735, LJC (Gill) at para [107]). As Honoré (About Law p 77) put it:
“One might think that, in contrast with content, requirements of form and procedure
are not important. That would be a mistake. Forms and procedures are important
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for a number of reasons. They make for certainty, they encourage careful reflection,
and they promote fairness.”
[38] The RCS, and associated practices, are designed to ensure both fairness and
efficiency in the civil process. Although there is a degree of flexibility in the selection of
remedy, the RCS specifically require a petitioner for judicial review to aver the legal basis for
challenge in the body of the petition, in addition to formulating an appropriate plea-in-law.
It follows from this that, in the event of there being a significant change of tack in the ground
of challenge, a petitioner ought to lodge an appropriate Minute of Amendment which will
reflect that change and, if the Minute is received, permit the respondent a formal and fair
opportunity to amend his Answers in response. Whether amendment will be allowed will,
as always, depend on the interests of justice. In the intended “speedy and cheap” process of
judicial review, the time at which the Minute is introduced can be a particularly important
factor in deciding this (King v East Ayrshire Council 1998 SC 182, LP (Rodger) at 196).
[39] There is a further important reason why the lodging of a Minute of Amendment
should be insisted upon before allowing a petitioner to deploy an entirely new argument in
judicial review proceedings. Permission to proceed is now a requirement of these
proceedings. The legitimacy of having some form of sifting system is not under challenge.
The reasons for having such a system were outlined by the Scottish Civil Courts Review
(supra). The petitioners do not have permission to proceed on the ground now advanced.
Had it been contained in the petition, the sifting Lord Ordinary may or may not have
granted permission on that ground (1988 Act, s 27B(4)(b)). Where a new ground is to be
advanced, it requires to be the subject of a judicial decision which can be seen as the
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equivalent of the grant of permission. That decision is one which allows the petition to be
amended.
[40] The need for amendment applies equally in the context of an appeal or a reclaiming
motion. A substantial change of tack may merit either a refusal of the amendment; possibly
leaving the petitioner to attempt to lodge a new petition, or a remit for reconsideration by
the Lord Ordinary (RCS 38.17(2)). What is not legitimate is for the petitioner to lodge a Note
of Argument (RCS 38.13(2)(c)) which is not consistent with the pleadings. It is equally not
legitimate, without permission of the court, to raise new arguments which do not conform to
the written Note (Practice Note No 3 of 2011 Causes in the Inner House para 84). These are not
procedural niceties standing in the way of due observance of the law. They are important
rules which ensure fairness and promote the determination of where the justice of the cause
lies.
[41] For this reason alone, the court would have been entitled to reject the principal
argument now advanced by the petitioner. It will not, however, rest its decision on this
ground.
Reduction of a Lord Ordinary’s Interlocutor
[42] The petitioners seek, inter alia, reduction of the interlocutors of the Lords Ordinary,
who refused permission, in the original judicial review processes. This is manifestly
incompetent. The supervisory jurisdiction of the Court of Session does not include the
power, in such a process, to review judicial decrees (Clyde & Edwards: Judicial Review
para 9.03 citing Moss’ Empires v Assessor for Glasgow 1917 SC (HL) 1, Lord Kinnear at 6-7);
even those of the Sheriff Court (Bell v Fiddes 1996 SLT 51, Lord Marnoch at 52 citing West v
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Secretary of State for Scotland 1992 SC 385). The Court can reduce its own decrees, but only in
the context of an ordinary action.
[43] If the court were to hold that the failure to appoint an oral hearing before refusing a
request for a review was incompetent in terms of the petitioners’ principal argument, or that
it was incompatible with the European Convention, a subsequent or parallel ordinary
process would be required to reduce the interlocutors of the Lords Ordinary. The
determination in that event would depend upon the application of the conventional
principles in relation to the reduction of court decrees, viz. whether, as a matter of equity,
reduction was necessary, in exceptional circumstances, to ensure that substantial justice was
to the Lord Ordinary’s (Lord Tyre’s) analysis of Adair v Colville & Sons 1926 SC (HL) 51 and
Bain v Hugh LS McConnell 1991 SLT 691; see also Campbell v Glasgow Housing Association 2011
Hous LR 7, Lord Woolman at para [48)). These principles apply even in cases where it is
accepted that, in the reasoning which resulted in a particular interlocutor, the Lord Ordinary
erred in fact or law. In the present cases, the court would have to consider whether the
appointment of an oral hearing would have made a difference to the outcome of the original
petitions.
[44] A petition to the nobile officium would not have been competent to reduce the
interlocutors of the Lords Ordinary. Such a petition is competent only where there is no
ordinary remedy available (Gibson’s Trustees 1933 SC 190, LJC (Alness) at 205, citing More’s
Notes on Stair). Here an ordinary action of reduction is open to the petitioners (cf Royal Bank
of Scotland v Gillies 1987 SLT 54, LJC (Ross), delivering the opinion of the court, at 55 quoting
from Glasgow Magdalene Institution Petrs 1964 SC 227, LP (Clyde) at 229).
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Construction of the statutory provisions
[45] The structure of sections 27B to D of the 1988 Act, and the relative RCS, are unusual
in the context of a court (as distinct from a tribunal) process, and especially that of the Court
of Session. Apart from it being uncommon for Court of Session procedure to be regulated so
closely by statute (cf Senior Courts Act 1981, s 31(3)), the provisions introduce a unique
procedure whereby it is possible for the decision of one judge to be reviewed and reversed
by a different judge of equal standing. The provisions also refer to an appeal to the “Inner
House”, which is not a court but a collective name for the Divisions of the court (1988 Act,
s 2(2)). These are matters which would merit re-consideration in due course, in favour of a
scheme which would better fit with the court’s structure. However, the unusual nature of
the provisions does not prevent them from being, as they are, clear and unambiguous.
[46] The first stage is for the first Lord Ordinary to consider whether or not to grant the
application for permission (1988 Act, s 27B(2)). He or she may do so without having an oral
hearing (ibid s 27B(5); RCS 58.7(1)). The process so far is not challenged by the petitioners.
The Guidance to Lords Ordinary (Practice Note No 3 of 2017 para 12) is that, if the Lord
Ordinary is considering refusing permission, an oral hearing should “ordinarily” be
appointed. In that event, the Lord Ordinary ought to produce a note which sets out the
concerns which are to be addressed at the oral hearing. If the Lord Ordinary refuses the
application without an oral hearing, he must give reasons for doing so (RCS 58.7(2)).
[47] Where a Lord Ordinary refuses an application after an oral hearing, the applicant has
a right of appeal to the “Inner House” (1988 Act, s 27D(1) and (2)). This procedure is again
not the subject of challenge. In terms of section 27C of the 1988 Act, where the Lord
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Ordinary refuses an application (in whole or in part) without an oral hearing, the applicant
“may…request a review of the decision at an oral hearing” (ibid Act, s 27C(2)). The
applicant does not have a right to have a review at an oral hearing. The right is only to
“request” such a review. That request is to be considered by a different Lord Ordinary (ibid
s 27C(3)).
[48] If the request for a review is granted, the subsequent oral hearing will also be
conducted by a different Lord Ordinary from the one who initially refused permission (in
whole or in part) without an oral hearing. The second Lord Ordinary can either grant or
refuse the request to have an oral hearing. If he grants the request, an oral hearing will then
be conducted either by that (second) Lord Ordinary or, potentially, a third Lord Ordinary.
In practice, efforts are made to ensure that it is the same Lord Ordinary who will conduct
the oral hearing as the one who appointed it. The oral hearing is not the same as the
consideration of whether to grant the request for a review. The hearing occurs later, as the
RCS make clear (RCS 58.8(2)). It is to last no more than 30 minutes (RCS 58.9(1), but that is
in the context of the Lord Ordinary having considered the papers in advance.
[49] If a decision to refuse permission to proceed occurs after an oral hearing, reasons
must again be given (RCS 58.9(2) and an appeal is available (1988 Act, ss 27D(1) and (2)).
These reasons ought to be produced as soon as reasonable practicable. If the request for a
review at an oral hearing is refused, there is no right of appeal or scope for a reclaiming
motion (ibid s 28 excluded by s 27C(6)). That refusal brings an end to the application for
permission process. Although it is not specified in the RCS, a Lord Ordinary is expected to
give reasons for a refusal of a request for a review at an oral hearing.
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[50] In the absence of any ambiguity, there is no need to have recourse to the materials
which preceded or accompanied section 89 of the Courts Reform (Scotland) Act 2014.
However, quantum valeat, the interpretation which the court has adopted is consistent with
these materials. The Scottish Civil Courts Review did not state that an applicant would be
entitled to an oral hearing. Rather, it said that the papers would be considered by a Lord
Ordinary who would “not normally require on oral hearing”. In the event of a refusal of
permission to proceed, the SCCR said that the petitioner “should be entitled to request that
the matter be reconsidered at an oral hearing” (SCCR Vol I para 152 (supra)). That is what
was enacted. The entitlement is to make the request to a different Lord Ordinary. It is not a
right to an oral hearing. Although the system in England and Wales was to be a model for
the new provisions, there is no suggestion that the English provisions were to be copied
slavishly.
[51] The original Policy Memorandum (paras 173 and 187 supra) reflected the SCCR
recommendations whereby the papers were to be considered by a Lord Ordinary who
would not normally require an oral hearing. The petitioner would only be entitled to
request that the matter be reconsidered at an oral hearing before another Lord Ordinary.
The Revised Explanatory Notes (para 137 supra) were to the same effect. Although some of
the ministerial statements (supra) might be regarded as ambiguous, they did not contradict
the terms of the Memorandum, the Explanatory Notes or the final version of the Bill as
enacted. In all of this, it should be borne in mind that the purpose of the permission stage
was to avoid the waste of precious court time in having lengthy oral hearings, including
those in reclaiming motions, on petitions which had no real prospects of success.
[52] The petitioners’ principal argument is accordingly rejected.
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The European Convention
[53] The petitioners did have access to the court in so far as they were entitled to lodge
their petitions and request permission for them to proceed. The need for that permission
may be seen as restricting a person’s Article 6 right to access to the courts. The degree of
access has to be sufficient to secure the individual’s “’right to a court’, having regard to the
57, citing Golder v United Kingdom (1979-80) 1 EHRR 524). The right of access “by its very
nature calls for regulation by the State, regulation which may vary in time and place
according to the needs and resources of the community and of individuals” (ibid, again
citing Golder v United Kingdom at para 38). The right of access may thus be subject to
limitations in the form of regulations by the state (Miloslavsky v United Kingdom (1995) 20
EHRR 442, at para 59). The state enjoys a margin of appreciation when imposing such
limitations. However, the court must be satisfied, first, that they “do not restrict or reduce
the access left to the individual in such a way or to such an extent that the very essence of
the right is impaired (ibid; Ashingdane v United Kingdom (supra) at para 57). Secondly, “a
restriction must pursue a legitimate aim and there must be a reasonable relationship of
proportionality between the means employed and the aim sought to be achieved” (ibid).
[54] The question is whether, in the context of their application for permission to proceed
with their petitions, an oral hearing be held so that, inter alia, a right of appeal was opened
up. The right to a public hearing under Article 6(1) of the Convention includes a right to an
oral hearing unless there are circumstances which justify dispensing with such a hearing
(Saccoccia v Austria (2010) 50 EHRR 11 at para 71). The purpose of holding an oral hearing is
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not because there is any magic in the power of oral advocacy. It is to ensure that justice is
transparent and is not conducted in secret (ibid para 70). That is also the purpose in
domestic law (Court of Session Act 1693). In Convention terms, an oral hearing will not be
required where there are no issues of credibility or contested fact which necessitate such a
hearing and the court can fairly and reasonably decide the application on the basis of parties
written submissions and any relevant documents (Saccoccia v Austria, at para 73; Altay v
Turkey (2020) 70 EHRR 4, at para 75 citing Nunes de Carvalho e Sá v Portugal, unreported,
34). Forgoing a hearing may be justified in cases which raise legal issues of a limited nature
or involve no particular complexity (Saccoccia v Austria (supra), at para 76; Altay v Turkey
(supra) at para 75 citing Nunes de Carvalho e Sá v Portugal (supra) at para 190). The
overarching principle of fairness is the key consideration (Saccoccia v Austria (supra) at
para 74).
[55] As the Lord Ordinary held (at para [39]), even when Article 6 applies with full force,
there are circumstances in which an oral hearing is not required. Whether such a hearing
can be dispensed with will depend on the nature of the case and whether it can be fairly
disposed of without an oral hearing. The application of sift type procedures, whether in the
context of a judicial review of an administrative decision or an appeal from a court or
tribunal, is a common feature of many systems. It is seen as necessary, and proportionate, in
order to avoid wasting precious judicial resources on cases where there is no real prospect of
success. Such systems will comply with Article 6 provided that the case is one that can be
dealt with fairly on the papers (see eg Martin v United Kingdom 1999 SCCR 941).
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[56] The system which is under consideration involves a judge first considering whether
an oral hearing is necessary or desirable before taking a decision to grant or refuse an
application. This is unobjectionable because, in the event of a refusal, the petitioner has the
opportunity of asking for a review of that decision at an oral hearing. It is the ability of a
second, different judge to refuse that request that is under challenge on two grounds: first, it
deprives the petitioner of presenting an argument at an oral hearing; and secondly, its effect
is that there is no onward appeal to one of the Divisions of the court.
[57] A judicial review petition requires to identify an error in law which vitiates the
President (Carloway) at para [32]). That error ought to be capable of accurate and succinct
expression in the written pleadings (ibid para [9]). The petitioner is then given two
opportunities. First, he will set out in writing the reasons why his application should be
granted. This is not a difficult exercise. The judge may afford the petitioner an oral hearing
and should normally do so, when considering a refusal (Practice Note No 3 of 2017 on
Judicial Review, para 12). If an oral hearing is appointed, the judge ought to produce a brief
note setting out the concerns which he considers should be addressed at the oral hearing.
The judge is nevertheless specifically entitled to refuse the application without such a
hearing (1988 Act, s 27B(5)). This is intended to apply to situations in which the judge
considers that there are no issues which he or she wishes to pursue because the petition is
devoid of any real prospect of success. In order to decide that, the Lord Ordinary must have
reasoned that an oral hearing would make no difference and thus serve no purpose.
[58] The second opportunity afforded to a petitioner arises in the context of a refusal,
whether or not an oral hearing has been appointed. If the refusal is after an oral hearing,
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there is a right of “appeal” to the “Inner House” and no difficulty arises. If the refusal has
been made without an oral hearing, the Lord Ordinary must give the reasons for doing so
(RCS 58.7(2)). The petitioner has no right of appeal. That is not a breach of the Convention
(Zubac v Croatia (2018) 67 EHRR 28 (GC), at para 80; Delcourt v Belgium (1979-80) 1 EHRR
355, at para 25). In any event, the petitioner has another route, akin to an appeal, which is
the right to request a review at an oral hearing. The request is made to a different Lord
Ordinary. It is effectively a review of the first Lord Ordinary’s decision not to hold an oral
hearing but to refuse the application without one. The petitioner can state (in Form 58.8) the
basis for seeking a review under reference to the Lord Ordinary’s reasons. The second Lord
Ordinary must, in light of the stated grounds, again ask himself or herself whether the
appointment of an oral hearing would make any difference to the decision to refuse. Where
the question is simply one of determining whether the error of law, which ought to have
been clearly identified in the petition, has any real prospect of success, this system is one
which is designed to achieve fairness in the decision making process. There is no reason to
suppose that it does not do so. It does not impair the very essence of the right of access to a
court. It provides a route to the court other than in circumstances in which two different
judges have considered that there is no real prospect of success.
[59] In assessing the proportionality of the statutory provisions, regard must be had to
the considered process through which they emerged. They were proposed in the Scottish
Civil Courts Review, which was produced after consultation with the profession and the
public. The SCCR had identified a particular mischief, which it thought ought to be
remedied. This was the excessive amounts of time which were taken up in listening to oral
argument on petitions which had no real prospect of success. This was using precious
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resources in terms of court time, which was required in order to deal with other substantive
business. The proposals were subjected to Parliamentary scrutiny before being enacted. The
provisions have now been in force for some time. Although, as was identified in Dinsmore v
Scottish Ministers [2019] CSOH 18 (Lord Doherty at para [19]) there may have been a point at
which the level of refusals without an oral hearing might have been regarded as somewhat
high, that situation has been remedied. This has been partly as a consequence of the error in
approach being identified and partly because of the clarity now provided in relation to the
meaning of the test to be applied (Wightman v Advocate General (supra), LP (Carloway) at
para [9]).
[60] The statistics produced for 2019 indicate that approximately 44% of applications to
proceed are granted without the need for an oral hearing. About 38% are appointed to oral
hearings, when about a third are granted permission. Only 20% of the total are refused
permission at this first stage. There were some 59 requests for a review at an oral hearing.
This constituted almost all of the permission refused cases. Some 28 of these were refused.
That represents only just over 10% of the total number of petitions lodged. This
demonstrates a reasonable relationship of proportionality between the means employed (the
scrutiny of two different judges and a defined test for the grant of permission) and the aim
sought to be achieved (the elimination in limine of petitions without merit and the
consequent preservation of judicial resources).
[61] The reclaiming motions are refused.