Judicial Review. Discretion of the court in giving a remedy for breach of article 6

31 August 2007

Ramzan Bibi v Scottish Ministers [2007]CSOH 151, 23rd August 2007

This decision of Lord Kinclaven clarifies the law where, in the context of an administrative appeal, the Scottish Ministers have breached a party's right to a hearing within a reasonable time under article 6 of the European Convention on Human Rights. Under the planning acts, the Ministers decided an appeal by the petitioner against an invoice served upon her by the local planning authority in respect of monies expended by it on maintaining an historic building that she owned. In October 2006, the court held that by their delay the Ministers had breached the petitioner's article 6 rights (reported at 2007 SLT 173). At a further hearing, the petitioner, founding upon R v HMA 2003 SC (PC) 21, argued that in such circumstances, the court had no discretion as to remedy, but was obliged to reduce the decision. Lord Kinclaven rejected this submission, and accepted the Ministers' argument that in such circumstances the court had a discretion as to remedy. Reduction was refused.

Jonathan Barne and James Mure, both of Axiom Advocates, appeared respectively for the petitioner and for the Scottish Ministers.

http://www.scotcourts.gov.uk/opinions/2007CSOH151.html