Ensuring that decisions lie fully within the law

Judicial review is the process by which courts exercise a supervisory jurisdiction over decisions made by other bodies and decision-makers, predominantly public bodies.

In Scotland, judicial review proceedings can only be brought in the Court of Session and require the court’s permission to proceed. The person bringing the challenge must demonstrate a sufficient interest, known as standing, and show that their application has real prospects of success before it can proceed to a full hearing.

The court procedures which apply are unique, as are the outcomes. Judicial review is not an appeal against a decision’s merits. The court is not concerned with whether it agrees with the outcome, nor will it ordinarily insert its own decision. The focus is on the lawfulness of the decision - whether the decision-maker acted within its powers, followed the appropriate procedure and reached a reasonable decision. Even a successful judicial review, therefore, does not guarantee the petitioner their desired outcome.

The growth in party litigant applications merits attention, says Alison Tyler

It remains common, notwithstanding the move to electronic documents and online hearings, for solicitors to engage specialist “Edinburgh agents” to assist in ensuring judicial review cases are properly presented. Counsel - advocates and solicitor advocates - are then instructed to present the case to the court, both orally and in written submissions.

Despite the demanding nature of the process, attempts by individuals, known as party litigants, to bring judicial reviews without legal advice are on the rise. Such litigants require preliminary authorisation from the court when their petition is not signed by an advocate or solicitor advocate. In 2024, there were 18 such applications for authorisation, rising to 57 in 2025 and 79 this year, to the start of October. Of those, nine, 16, and 27, respectively, were allowed to continue to the permission stage on standing and prospects.

Although these numbers remain relatively modest, the upward trend is striking. The increasing availability of AI seems to be the predominant factor driving the increases in number. AI chatbots have made it easier for party litigants to produce documents with the appearance and structure of legal pleadings. They provide advice which, though caveated as not being legal advice, is being relied upon by party litigants as if it were.

The volume of material produced by AI, all of which requires to be considered by the court, is often substantial. Judicial review challenges that are doomed to fail are sometimes now being presented as if incontrovertible. Of concern, party litigants are often surprised to find they may be liable for the (often significant) expenses of the respondent if unsuccessful.

The Scottish Civil Courts Review identified concerns as far back as 2009 that judicial review cases occupied a “disproportionate amount” of court time. As such, the growth in party litigant applications merits attention.

It is, of course, necessary for our courts to provide a mechanism for individuals to challenge decisions they consider to be wrong but monitoring these matters remains sensible for all concerned. AI may lower some of the practical barriers to accessing the courts, but accessibility and effective access to justice are not necessarily the same thing.

Whether AI helps litigants navigate this complex area of law or simply makes it easier to enter it without forewarning of the difficulties and consequences is an important issue to keep in mind. That is especially true for local authorities and public bodies who are required to respond to, and budget for, the increasing number of cases.

Alison Tyler is a Partner, Clyde & Co