Right First Time: A practical guide for public authorities in Scotland to decision-making and the law - third edition

Step 5 | Respond: Responding to challenge

22. What type of legal challenge can a decision-maker face?

23. What are the parties’ duties to the court?

24. What is a Specification of Documents and what do I need to do?

Question twenty-two - 22 What type of legal challenge can a decision‑maker face?

A decision-maker may make a decision based upon a power set out in legislation, a common law power, or as part of the royal prerogative (see question one).

The type of legal challenges a decision-maker might face depends upon the nature of the decision. There may be provision for an appeal of the decision in question, the decision may be subject to a petition for judicial review, or a regulatory body may be able to investigate.

What is an appeal?

If the decision-maker makes a decision using a power provided for in legislation, that legislation may also allow for an appeal in relation to that decision. If this is the case, the legislation will provide details as to the nature of an appeal, the time limits for appealing and which court or tribunal can hear the appeal.

Scotland has a variety of courts and tribunals, including the sheriff courts, Court of Session, First-Tier Tribunal, and Upper Tribunal. There are also tribunals which have jurisdiction on specific matters, such as the UK-wide Employment Tribunal which governs employment disputes which can be relevant to public authorities.

What is a judicial review?

Judicial review is a “remedy of last resort” where there isn’t a suitable statutory right of appeal and allows for review by the court of an administrative decision. Proceedings for judicial review in Scotland are brought in the Outer House of the Court of Session. In a judicial review, the court may consider whether the administrative law obligations set out in the earlier sections of this guide have been properly applied. In human rights cases the court can also look at the proportionality of the decision.

Judicial review is not an appeal on the merits of a case, but rather a review of the lawfulness of a particular decision (or failure to make a decision). This means the court will review the legality of the decision and the process by which it was reached. It will not substitute its own decision, but will send the case back to the decision-maker to consider again if it finds the original decision to have been defective. This is known as “quashing” the decision. The court may also award damages, make a declaration or make interim orders while the case is being considered where this is appropriate in the circumstances of the particular case, so for example, suspending what would otherwise be the effect of the decision meantime.

What is the procedure for a judicial review?

Judicial review proceedings in Scotland are made by way of a petition to the Outer House of the Court of Session in Edinburgh and must generally be raised within three months of the date of the relevant decision being complained about. The court has a discretion to extend the time period, which it will do in particular circumstances, for example, in a recent decision where the decision was not received until a later date^[23].

First Orders

Once a petition for judicial review has been lodged in court, it will go to a judge for First Orders to be granted. These allow the petitioner (the person challenging the decision) to serve the petition on the respondent (the decision-maker) – this effectively starts the proceedings.

At this stage, however, the petitioner can also seek interim orders to apply until the court has an opportunity to consider what should happen at a full hearing of the case (usually to suspend the effect of the decision meantime, for example, to prevent the demolition of a building). Such orders can be granted before the respondent has had the proceedings served and so to avoid that position and to make sure that they are alerted where a petitioner is seeking interim orders against them, respondents lodge what is known as a caveat with the court. This means that if interim orders are sought, the caveat will be triggered and the respondent can then arrange to make representations to the judge and challenge the request for interim orders.

Permission stage

Once any first orders have been considered and the petition has been served on the respondent, the case will proceed to the permission stage where a judge will determine whether the case may proceed. For permission to be granted, the petitioner must have standing and the claim must have realistic prospects of success. A petitioner will have standing if they have a “sufficient interest” in the subject matter or effect of the decision. A petition will have realistic prospects of success if there are some prospects and the case is not fanciful. Generally speaking, the threshold for obtaining permission is a low one.

Permission can be refused or granted on the papers, i.e. without a hearing. The court may, however, order an oral permission hearing where parties are required to address the court on the permission test. It is for the judge to decide whether to grant/refuse permission on the papers or appoint an oral hearing. If permission is refused on the papers, a petitioner can request an oral hearing. If the court refuses the request for an oral hearing then that is the end of the process. If permission is refused following an oral permission hearing, then the petitioner can reclaim (appeal) the refusal to the Inner House.

If permission is granted, then the court will set down a date for a substantive hearing where the full merits of the case will be considered. Judicial reviews are generally about the law and about how a decision has been taken. It is very rare for witnesses to be called and oral evidence taken from them, although this can happen, or alternatively, sworn statements or affidavits may be required.

Third party interventions

It is possible for third parties who have an interest in a judicial review action to seek to intervene in proceedings. This is done by way of application to the court and parties may intervene in two ways.

One such way is where a party considers that they are “directly affected” by the issues raised in the case and in those circumstances may apply to enter the process and become a party to the case with the same rights of participation as the first petitioner and first respondent. It may be that the petitioner is aware that a person or body who is not the decision maker nonetheless has an interest in the subject matter of the challenge and will serve the proceedings on them for that interest. That then allows them to consider whether or not to become involved in the process.

Alternatively a party may apply to participate in a case by way of “public interest intervention”. This allows a person to make an application to the court to intervene in a judicial review action where they believe that an issue in the case raises a matter of public interest. Public interest interventions are treated differently to those permitted to intervene on the basis that they are “directly affected” by a case in that they are generally only allowed to participate by way of written submissions on specific issues and oral submissions are only granted in exceptional circumstances.

Legal remedies in judicial review actions

If a judicial review action is successful, the court has the discretion to decide what legal remedy it should grant, and a variety of remedies are possible. Some remedies require a decision-maker to take a decision again. However, as noted above, the court hearing the judicial review will not stipulate what the substance of that new decision should be.

Instructing advocates

Where an appeal or judicial review is raised in the Court of Session, both the petitioner and respondent in the action will instruct an advocate or solicitor-advocate (as they have “rights of audience” or the right to appear before the court) to represent their interests in the case. Where the respondent is the Scottish Ministers, the advocate is generally selected from a pre-approved list known as the standing juniors list. Standing juniors generally have either an interest or specialisation in administrative law. Those who were involved in making the decision which is being challenged will ordinarily be involved in the judicial review proceedings by way of giving instructions, attending meetings with litigation colleagues and the advocate appointed to represent the case in court, providing information to the litigation team regarding the decision being challenged and potentially attending court hearings where appropriate.

What other challenges are possible?

There are also a number of administrative bodies which may investigate complaints about the actions and decisions of public authorities. For instance, the Scottish Public Services Ombudsman (SPSO), and the Scottish Information Commissioner (see question 17) are regulators who can investigate decisions made by public authorities. In respect of the SPSO, it will not usually investigate a matter where there is a right of appeal or redress in court, but may do so where it is not reasonable to expect a person to resort to that remedy. It is a good idea to seek legal advice as soon as possible when you become aware of a challenge to a decision or threat of a challenge to understand next steps and particularly as there may be strict time limits which apply.

Onwards appeals

There are often further appeal rights from the court or tribunal which hears the initial appeal/review. For instance, the decision of the Outer House in a judicial review can be appealed to the Inner House of the Court of Session, and thereafter to the Supreme Court. Advice should be sought in relation to onward appeals for individual cases as availability may differ depending on the nature and basis of the original appeal.

Question twenty-three - 23 What are parties’ duties to the court?

In any court case, the decision-maker will have duties to the court or tribunal. The nature and extent of these duties will vary depending upon the type of decision and type of proceedings.

The overarching duties of parties to a court case is not to mislead the court or make irrelevant claims.

Public authorities have duties of openness and transparency as a general principle^[24].

Disclosing documents relied upon

What this means is that parties must be upfront with the courts in their written case (pleadings) before the Court. If a document is referred to in those pleadings, then it should be produced to the court. Also, parties must have an evidential basis for anything written in their pleadings: that is to say that parties must be able to support claims that they make to the court.

The decision-maker should be upfront when defending the decision and not make a case for which there is no evidential basis.

As part of these duties, decision-makers can be bound in the following ways:

• undertakings: a decision-maker may make an undertaking to the court. The undertaking will require the decision-maker to act or not act in a certain way. These are often used as an alternative to the court having to grant an order. Parties must stand by statements or agreements made with the court either in pleadings, correspondence or by their lawyer in open court. The failure to comply with an undertaking given to the court is a very serious matter and may amount to a contempt of court for which the decision maker may be summoned to attend the court.
• written pleadings: it is clear that the decision-maker is bound by any position they adopt in written pleadings and must not act contrary to this. Where a party sets out a position in detailed and specific averments in written pleadings put before a court on the professional responsibility of those acting on behalf of the decision-maker then that is also an undertaking to the court^[25].
• orders for production of documents: if an order for production of documents is made by the Court the decision maker must search diligently for and produce all documents which they hold which fall within the category of documents of which the court has ordered production.

It is noted that in England, Wales and Northern Ireland that there is a specific “duty of candour” resting upon parties to proactively disclose all documents relevant to their case without being ordered to do so by the court. This concept is more specific than has hitherto been recognised by the courts as being the position in Scots law.

Question twenty-four - 24 What is a Specification of Documents and what do I need to do?

What is a Specification of Documents?

In a court case in Scotland, a party can seek a Commission and Diligence for recovery of documents. This is an application to the court for an order compelling a person or body to produce documentation, in hard copy or electronic form, to the person making the application. This involves a party making a motion to the court for Commission and Diligence which is accompanied by a Specification of Documents.

It is important to note recovery of documents can be sought from someone who is not a party to the case. For example, in a personal injury case, a former employer may be asked to produce wage slips, and if this cannot be done informally then recovery through this formal process may be required.

The Specification of Documents is the list and nature of documents that are sought by the party. A court will not grant Commission and Diligence if the party is engaging in a “fishing expedition”; that is to say, the party is seeking documentation to create a case or a new ground of challenge.

A court will grant Commission and Diligence where the documents sought are relevant to the written case (called “the pleadings”) already before the court, in which the documents sought and who holds them are sufficiently specified.

If the Commission and Diligence is granted, ordinarily the party who made the application will then adopt what is known as the Optional Procedure. This is where the person who has the documents (the “haver”) is ordered by the court to produce these within seven days for inspection by the person who applied to the court for Commission and Diligence.

Following the expiry of seven days, if the party seeking the documents has not received disclosure or is unhappy with the extent of disclosure, they may ask the court to appoint a Commissioner. They can then cite relevant havers to attend at a hearing (the “Commission”) at which the Commissioner acts in place of the judge or sheriff.

At the Commission, a Commissioner (most often an Advocate or Solicitor) has the power to call parties to swear an oath or affirmation and ask them limited questions regarding the documentation sought (e.g. whether a document exists, where it might be, what searches have been carried out, who else might have the document(s), etc). Havers should not be asked about the contents or substance of the documents sought.

Thereafter, the Commissioner will lodge a report with the court regarding compliance with the Specification of Documents including what further steps may be necessary to recover the documentation.

What is not covered by a Specification?

The following can be relevant grounds for resisting a specification:

• fishing expedition: if the specification is too broad and is seeking information not linked to the written pleadings, objections can be taken on this basis.
• public interest: in certain circumstances, disclosure of certain information can be resisted on the basis of public interest (e.g. legal advice need not be disclosed).
• confidentiality: in certain circumstances, documents can be produced to the court in a sealed envelope for the court or the Commissioner to inspect and determine whether, in the interests of justice, disclosure of the documents, despite their confidential nature, should still be made.

What should I do if I receive a Specification of Documents?

It is extremely important that a Specification of Documents is not ignored and that the time limits are complied with. This is not an optional matter and there can be severe consequences for non-compliance with the court’s order.

For example, if a Commissioner is not satisfied that a haver has displayed candour under oath, or deliberately delayed in producing material which they have in their possession, there may be an issue of whether that amounts to Contempt of Court for failure to comply with a court order.

The scope of a Specification of Documents can also be very wide. The breadth of material caught by the specification may be wider than for comparable disclosures under freedom of information or data protection legislation. The same exemptions and exclusions in that legislation will not necessarily apply to a Specification of Documents. Once an order is granted, it is more difficult than in a freedom of information request, to make an argument that the volume of material caught allows production to be resisted.

A thorough search for material, both in hard copy and electronic formats, should be carried out immediately. If the person receiving the specification considers that others in the organisation may hold relevant material they should contact them to ask them to search as soon as possible.

If there is difficulty with complying with the deadline (e.g. historical documents will take longer to retrieve from storage) then action must be taken to inform the party seeking the documents.

In any event, if there is any difficulty or delay in obtaining documents, advice should be taken as soon as possible and the party seeking the documentation should be informed.

Acknowledgements

I am grateful to the team who worked on this extensive update, who are named below. I would also like to extend my gratitude to every colleague who was consulted and involved in the process, who attended workshops and offered comment. Each individual contribution was important and instrumental to this final publication.

Editors: Ben Gaston & Chris Nicholson

SGLD team: Kirsteen Baker, Alistair Crooks, Graham Fisher, Craig French, Adrienne Forman, Laura Kennedy, Brian Lavelle, Rachael McLean, David Maclennan, Eva Milne, Katherine Marshall, Victoria Morton, James Macfarlane, Jennifer Singerman, Lucy Ward and Lorraine Walkinshaw.

Ruaraidh Macniven, Solicitor to the Scottish Government