Introduction

The case of Booth and Philp v Highland Council ([2013] CSIH 70) presents a significant examination of procedural constraints within the Scottish judicial system, specifically concerning reclaiming motions in judicial reviews. David Booth and Holly Philp challenged the decisions of the Non Domestic Rates Appeal Committee of the Highland Council, alleging unlawful conduct and seeking substantial damages. This commentary explores the intricacies of the court's decision, highlighting the procedural nuances under the Court of Session Act 1988 and the implications for future judicial review processes.

Summary of the Judgment

The petitioners, Booth and Philp, initiated a judicial review against the Highland Council, contesting the decisions made by its Non Domestic Rates Appeal Committee on 19 December 2019. They argued that the Committee lacked independence and impartiality, leading to adverse financial consequences and posing a danger to the public. The respondents countered by asserting the Committee's lawful establishment and the petition being time-barred under section 27A of the Court of Session Act 1988.

The initial refusal to permit the petition proceeded without an oral hearing, leading the petitioners to seek a review of this refusal. Both requests were denied on the grounds of the petition being time-barred and lacking a real prospect of success. Subsequently, the petitioners filed a reclaiming motion against the refusal, which the court deemed incompetent under section 27C(6) of the Act. The Supreme Court upheld the decision to refuse the reclaiming motion, emphasizing adherence to the statutory framework governing judicial reviews.

Analysis

Precedents Cited

The judgment references Prior v Scottish Ministers ([2020] CSIH 36) as a pivotal precedent. In this case, the court emphasized the importance of oral hearings when refusing permission to proceed with a judicial review, aligning with Practice Note No 3 of 2017. The Lord President highlighted that without an oral hearing, petitioners lack the avenue to appeal a refusal effectively, reinforcing the procedural safeguards within the judicial review process.

Legal Reasoning

The court's decision hinged on the statutory interpretations of sections 27C and 27D of the Court of Session Act 1988. Section 27C outlines the procedures for requesting reviews of decisions on permission to proceed with a judicial review, stipulating strict time limits and the necessity for decisions to be made by different Lords Ordinary. The petitioners' reclaiming motion was deemed incompetent as it fell outside the scope permitted by section 27C(6), which explicitly excludes reclaiming motions against refusals to grant oral hearings.

Additionally, the court addressed the petitioners' request to exercise the dispensing power under Rules of Court (RCS 2.1(1)), dismissing it as inapplicable since there was no failure to comply with court rules. This reinforced the court's stance on upholding the clear and unambiguous legislative framework without extending discretionary powers in this context.

Impact

This judgment underscores the rigidity of procedural rules governing judicial reviews in Scotland. By affirming the incompetency of the reclaiming motion under the specified statutory provisions, the court reinforces the importance of adhering to procedural timelines and limitations. Future litigants must be cognizant of these constraints to avoid similar dismissals. Moreover, the decision highlights the limited scope for appealing refusals of permission to proceed without engaging in oral hearings, potentially influencing how lower courts handle such preliminary stages of judicial reviews.

Complex Concepts Simplified

Judicial Review

A judicial review is a legal process where courts examine the lawfulness of decisions or actions made by public bodies. It ensures that decisions are made fairly, legally, and within the authority granted by legislation.

Reclaiming Motion

A reclaiming motion is a mechanism by which a party can challenge or appeal a decision made by a court, typically to overturn a prior ruling or seek reconsideration under specific circumstances.

Section 27C of the Court of Session Act 1988

This section outlines the procedures and limitations for requesting reviews of judicial review decisions, including strict time frames and requirements for who can hear such requests.

Conclusion

The Booth and Philp v Highland Council case serves as a critical reminder of the stringent procedural frameworks governing judicial reviews in Scotland. By upholding the incompetency of the reclaiming motion based on clear statutory provisions, the court reinforced the necessity for litigants to meticulously adhere to procedural timelines and requirements. This decision not only clarifies the boundaries of reclaiming motions but also underscores the judiciary's commitment to maintaining order and predictability within the legal process. Moving forward, legal practitioners and parties involved in judicial reviews must prioritize compliance with these procedural mandates to effectively navigate the complexities of the Scottish legal system.