Remedies through judicial review

The Rules of the Court of Session deal explicitly with the remedies available under judicial review procedure.



This content applies to Scotland

Rules of the Court of Session

The Rules state that, 'the court in exercising its supervisory jurisdiction in respect of an application for judicial review may ... make such an order in relation to the question as it thinks fit, whether or not such an order was sought in the application, being an order that could be made if sought in any action or petition including an order for reduction, declarator, suspension, interdict, implement, restitution, payment (whether of damages or otherwise) and any interim order.' [1]

In other words all of the orders normally available in civil litigation are available under this procedure.

Interim orders/interdicts

At the first stage the court can grant an interim order to enable the applicant to be accommodated pending the outcome of the full proceedings, or if required an interdict to prevent the withdrawal of temporary accommodation pending the outcome of the proceedings. [2]

Reduction

Reduction is a judgement of the court that legally invalidates purportedly legal documents including deeds and other writings, and purportedly legal decisions. For example, the court may quash a decision that the applicant was intentionally homeless and make the local authority look at it again. [3] Advisers should bear in mind that while an order of reduction has the effect of setting aside a decision it does not replace the decision of the local authority with something more favourable. The limitation of such an order was shown in a case on the equivalent English remedy where the local authority looked at the case again but reached the same adverse decision. [4]

Declarator

The court is reluctant to hear declarators in relation to the working of Acts of Parliament. However, where the court indicates that only one decision can be made, it in effect orders the authority to make that decision. For example, prior to priority need being abolished in Scotland, an English judge made it clear to a local authority that its decision that two 16 year olds were not in priority need could not be sustained. [5]

Section 45 of the Court of Session Act 1988

Section 45 provides a remedy whereby the court may order specific performance of a duty by a public official or a public body on whom a definite duty exists at statute. Thus an authority can be ordered to do or perform some act that it should have done. This includes failing to meet its obligations under Part II of the Housing (Scotland) Act 1987. [6] Given the other orders available, it is not necessary to include this remedy in homelessness cases.

Damages

It is a general principle that where an individual has suffered harm as a consequence of the unlawful actions or omissions of a public official or public body, an action for damages may be available. [7] In Scotland it was accepted in one case that the failure of an authority to perform duties under the homeless legislation entitled a petitioner to damages that could be claimed in the course of judicial review, [8] but this can no longer be regarded as good law.

It has since been held that breach of statutory duty under homelessness legislation on its own does not give rise to an individual's right to claim damages. [9]

However where the individual's Article 8 rights have been infringed as a result of the breach of the statutory duty [10] it is arguable that in some circumstances a claim for damages may be made. [11]

In addition, under the Equality Act 2010, it is possible that damages could be awarded, in respect of of acts or omissions which could not otherwise give rise to a claim, if it could be shown that such a failure amounted to unlawful discrimination. [12]

Footnotes

  • [1]

    See Rules of the Court of Session, Chapter 58

  • [2]

    Act of Sederunt (Rule of the Court of Session 1994) 1994, rule 58.9(2)(b)(iii)

  • [3]

    Brown v Hamilton DC, 1983 SLT 397

  • [4]

    R v LB Tower Hamlets ex parte Monaf (1988) 20 HLR 529

  • [5]

    Kelly v Monklands DC, 1986 SLT 169

  • [6]

    Galbraith v Midlothian DC (1979) SCOLAG 172

  • [7]

    St. Clair and Davidson, Judicial Review in Scotland, W. Green and Son 1986

  • [8]

    Kelly v Monklands DC, 1986 SLT 169; see also A W Bradley, Administrative Law, Stair Memorial Encyclopaedia, Vol 1, para 333

  • [9]

    O'Rourke v Camden LBC [1997] 3 WLR 86

  • [10]

    s.8 Human Rights Act 1998

  • [11]

    R. (on the application of McDonagh) v London Borough of Enfield [2018] EWHC 1287 (Admin) 2018

  • [12]

    s.119(3)(a) Equality Act 2010; see also Housing & Equality Law in Scotland, p.95, A. Stalker, Shelter Scotland 2018