This is intended to be the first of several blog posts which discusses the topic of remedies. This post is a general consideration of the topic. Future posts will be considering interim remedies, protective expenses orders and caveats.
Part 10: Remedies
Judicial review is merely a name for a form of court procedure. The remedies available are potentially as many as the court has available to it. An important aspect of any judicial review is the question “what orders should you be asking for”? Underlying that question is a clear understanding of what it is that the respondent has done, or failed to do, and what they ought to have done. Typical remedies are for reduction, declarator, suspension, interdict, specific performance of a statutory duty or specific implement, damages, a protective order for expenses. There is specific discussion about interim orders in Part 11, and a discussion of protective expenses orders in Part 12.
In McKenzie v Scottish Ministers it was held that in an appropriate case, an interim declarator might be competent against the Crown but that in that case the petitioner had not made out a prima facie case which was so strong as to merit the summary granting of orders without affording the Scottish Ministers the opportunity to lodge written answers.
Until Davidson v Scottish Ministers it was the generally accepted view that, apart from cases involving breach of EU law (Factortame), it was not possible to obtain interdict (or interim interdict) against the Crown. That view was held to be incorrect in Davidson, where the House of Lords held that references to ‘civil proceedings’ in Section 21 of the Crown Proceedings Act 1947 Act were not to be read as including proceedings invoking the supervisory jurisdiction of the Court of Session in respect of acts or omissions of the Crown or its officers. It is therefore possible to get interdict or interim interdict against a government minister or government department in judicial review against the Crown.
Under Section 47(2) of the Court of Session Act 1988 the Court (in any case) can make such order regarding the interim possession of any property to which the cause relates, or regarding the subject matter of the cause, as the Court thinks fit. Under Section 47(2A) this power includes, in particular, power to make an order ad factum praestandum (including an interim order). In Smith v Mental Health Tribunal for Scotland, 2006 SLT 347, Section 47(2) was used to obtain an order ordaining a tribunal to be convened in order to determine an application made under the Mental Health (Care and Treatment) (Scotland) Act 2003.
Crown Proceedings Act 1947, Section 21
Court of Session Act 1988, Sections 45(b), 47
R v Secretary of State for Transport ex p. Factortame,  2 AC 85
R v Secretary of State for Transport ex p. Factortame (No. 2),  ECR 1-3905
McKenzie v Scottish Ministers, 2004 SLT 1236
Davidson v Scottish Ministers, 2006 SC (HL) 41