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Right First Time: a practical guide for public authorities to decision-making and the law - second edition

Right First Time is a practical guide for public authorities in Scotland to decision-making and the law.


Responding to challenge

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).

What type of legal challenges a decision-maker might face depends upon what power gave rise to the decision.

What is an appeal?

If the decision-maker makes a decision under a legislative provision, there may be an appeal provided for in that legislation. 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 Court, Court of Session, the First-tier Tribunal for Scotland, the Lands Tribunal for Scotland and the Scottish Land Court. There may be onwards appeal rights from the court or tribunal which hears the initial appeal. There are also UK-wide tribunals which may have jurisdiction such as the Employment Tribunal which governs employment disputes which can be relevant to public authorities.

Advice should be sought in relation to appeals as each system is different.

What is a judicial review?

If there is a decision (or failure to take a decision) affecting persons by someone empowered by law and in respect of which there is no other available remedy, then judicial review might be relevant.

The Outer House of the Court of Session is the only Court in which judicial review proceedings can be brought.

In a judicial review, the Court cannot substitute its own decision, but can quash a decision and send it back to be considered again – except where it is a human rights case, when the Court can re‑examine the merits[21].

In a judicial review, the Court may consider whether the administrative law obligations set out in the earlier sections of this guide have been breached.

If the Court finds that they have been breached, then the Court may quash decisions, award damages, make a declaration and make interim orders, including interim interdict. The Court can of course also refuse the petition.

What is the procedure for a judicial review?

Judicial reviews are made by way of a Petition to the Outer House of the Court of Session in Edinburgh. All Judicial review actions go to a judge for First Orders to be granted. The first order allows the petitioner (the person challenging the decision) to serve the petition on the respondent (the decision-maker).

It is at this stage that the petitioner can also seek interim orders, for example to prevent the demolition of a building until the Court has an opportunity to consider what should happen to it at a full hearing of the case. If interim orders are sought, a caveat may be triggered. Caveats are a form of early warning system which respondents often put in place in the Court of Session in order to alert them in the event that a petitioner is seeking an award of interim orders against them. The respondent can then arrange to make representations to the judge before first orders are granted.

Once first orders have been granted, the respondent will arrange for an advocate to be appointed to represent their interests in the case. Where the respondent is the Scottish Ministers the advocate is drawn from a pre-approved list and is known as a standing junior. Standing juniors generally have either an interest or specialisation in administrative law. You may be invited to attend a meeting or consultation with the advocate before the hearing, and are likely to be asked to provide information regarding the decision challenged for the purpose of instructing the advocate to appear, or seeking their advice.

Following first orders, the case will proceed to the permission stage which was introduced by the Court Reform (Scotland) Act 2014. 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. The Court may order an oral permission hearing where parties are required to attend a thirty-minute hearing to address the Court on the permission test. If permission is refused twice on the papers 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 merits of the full 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.

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.

As part of these duties, it is clear that, public authorities have duties of openness and transparency as a general principle[22].

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 the 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;
  • 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[23].

It is noted that in England, Wales and Northern Ireland that there is a specific “duty of candour” resting upon parties to disclose all documents relevant to their case. This concept is more specific than 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, where the documents sought and who holds them are sufficiently specified.

If the Commission and Diligence is granted, ordinarily parties will then adopt what is known as the Optional Procedure. This is where the person with the documents (the haver) is ordered by the court to produce these within seven days for inspection by the petitioner.

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 seek for a Commissioner to be appointed. They can then cite relevant havers to attend at the Commission.

A Commissioner (most often an Advocate appointed by the court) has the power to call parties to swear an oath and answer limited questions regarding the documentation sought (e.g. whether the document exists, where it might be, what searches have been carried out, who else might have the document(s), etc).

Thereafter, the Commissioner will lodge a report with the court regarding compliance with the Specification of Documents.

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 upon this basis;
  • public Interest: in certain circumstances, disclosure of certain information can be resisted upon 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 to inspect and determine whether in the interests of justice, disclosure of information, despite its confidential nature, should be made as part of the Commission and Diligence.

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, then 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 the specification may be wider than comparable disclosures made under Freedom of Information or Data Protection legislation. 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.

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.

SGLD team: Dawn Archer, Craig French, Jonathan Hodges, Rosie MacQueen, Rachael McLean, Jordan McGrory, Lewis Newlands, Mhairi Reid, Susan Simpson, Lucy Ward, Keith White, Gillian Wildgoose and Emily Williams-Boylston.

Ruaraidh Macniven Solicitor to the Scottish Government

Contact

Email: ImprovingTogether@gov.scot

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