PETITION FOR JUDICIAL REVIEW BY DAVID BOOTH AND HOLLY PHILP AGAINST THE HIGHLAND COUNCIL

Factual and Procedural Background

The petitioners sought judicial review challenging the validity, purpose, conduct, and decisions of the Non Domestic Rates Appeal Committee ("the Committee") of Company A. The petitioners alleged that on 19 December 2019 the Committee made a decision causing them adverse financial consequences. They contended that the respondents acted unlawfully in convening the Committee, that it lacked independence and impartiality, was susceptible to abuse, and posed a danger to the public. The petitioners sought various orders and damages of £100,000.

The respondents explained that the Committee heard an appeal by the petitioners under section 238 of the Local Government (Scotland) Act 1947, and that the Committee was properly established and acted lawfully. They also averred that the petition was time-barred, having been commenced outside the three-month period specified in section 27A of the Court of Session Act 1988.

On 4 September 2020, a Lord Ordinary refused permission to proceed on the grounds that the petition was time-barred and had no real prospect of success. The petitioners requested a review at an oral hearing, which was refused by a different Lord Ordinary on 18 September 2020 for the same reasons. Neither Lord Ordinary held an oral hearing before making their decisions.

The petitioners then enrolled a reclaiming motion seeking review by the Inner House of the interlocutor pronounced on 18 September 2020. The competency of this reclaiming motion was questioned by court staff and referred to the procedural judge in the Inner House. A hearing was held where submissions were made by the petitioners' lay representative and the respondents' counsel regarding the competency of the reclaiming motion.

Legal Issues Presented

1. Whether the reclaiming motion against the refusal of permission to proceed with the judicial review petition is competent under the statutory scheme governing judicial review applications.
2. Whether the court should exercise its dispensing power under RCS 2.1(1) to allow the reclaiming motion to proceed despite procedural errors.

Arguments of the Parties

Appellant's Arguments

• The reclaiming motion should be allowed to proceed as a matter of fairness.
• Reliance on observations of the Lord President in Prior v Scottish Ministers [2020] CSIH 36 to support competency.
• Request for the court to exercise its dispensing power under RCS 2.1(1) due to a mistaken omission in the request for review, caused by misunderstanding.

Respondents' Arguments

• Section 27C(6) of the Court of Session Act 1988 renders the reclaiming motion incompetent.
• The statutory scheme does not allow an appeal or reclaiming motion against the refusal to grant an oral hearing request.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory scheme introduced by section 89 of the Courts Reform (Scotland) Act 2014, which governs judicial review applications. The scheme includes a three-month time limit for applications and requires permission from the court to proceed, which must have a real prospect of success.

Section 27C of the Court of Session Act 1988 allows a petitioner to request a review at an oral hearing if permission to proceed is refused without an oral hearing, to be considered by a different Lord Ordinary. However, section 27C(6) excludes the right to reclaim or appeal against the refusal of such a request for an oral hearing.

In this case, the petitioners were refused permission without an oral hearing and subsequently had their request for an oral hearing refused. The petitioners sought to reclaim this refusal, but the court found that under the statutory scheme, no reclaiming motion is competent in these circumstances.

The court acknowledged that it might have been preferable to hold an oral hearing initially, but the statute permits refusal of permission without one. The court also rejected the petitioners' request to exercise the dispensing power under RCS 2.1(1), as there was no failure to comply with court rules.

Accordingly, the reclaiming motion was found to be incompetent and was refused.

Holding and Implications

The court held that the reclaiming motion was INCOMPETENT and must be refused.

The direct effect is that the petitioners cannot appeal or reclaim against the refusal of the request for an oral hearing following refusal of permission to proceed with the judicial review petition. The decision enforces the statutory scheme as enacted, without setting any new precedent beyond affirming the inapplicability of reclaiming motions in these circumstances.