Remedies in Judicial Review

October 17th, 2012 by James Goudie KC

In Walton v The Scottish Ministers [2012] UKSC 44, concerned with the construction of an Aberdeen bypass, Lord Carnwath observed, at para 103, that the issue of discretion may in practice be “closely linked” with that of standing, and may be “important in maintaining the overall balance of public interest” in appropriate cases. Lord Carnwath said:

” … I see discretion to some extent as a necessary counterbalance to the widening of rules of standing. The courts may properly accept as “aggrieved”, or as having a “sufficient interest” those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment. However, if it does so, it is important that those interests should be seen not in isolation, but rather in the context of the many other interests, public and private, which are in play in relation to a major scheme …”

At paragraph 112 Lord Carnwath said:

“The applicant will be refused a remedy, where he complains only of a procedural failure (whether under statutory rules or common law principles), if that failure has caused him personally no substantial prejudice. Where, however, a substantive defect is established, going either to the scope of the statutory powers under which the project was promoted, or to its legality or rationality … the court’s discretion to refuse a remedy will be much more limited. These general principles must of course be read in the context of the statutory framework applicable in a particular case.”

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