Outer House Decision ‘Trumps’ time bar to allow petition in relation to the former US President’s Scottish spending

A Scottish judge has granted the global campaign group, the Avaaz Foundation, permission to challenge a decision by the Scottish Ministers to reject calls for an investigation into how Donald Trump raised hundreds of millions of pounds spent on his two Scottish golf courses, near Aberdeen and Turnberry.

Background

The Avaaz Foundation is a US based non-profit organisation which had previously raised concerns about the lack of clarity regarding the Scottish properties owned by the Trump Foundation and how the properties had been purchased. The Avaaz Foundation then asked the Scottish Ministers to seek an Unexplained Wealth Order (UWO) which is an investigative tool requiring the individual in question to set out the nature and extent of their interest in the relevant property or assets, including explaining how the individual obtained the property or assets.

Avaaz was unsatisfied with the initial response from the Scottish Ministers and embarked on various political lobbying activities, culminating in Patrick Harvie, MSP for the Scottish Greens, writing a letter to the First Minister enquiring further about the matter. The Scottish Ministers rejected the request to proceed with an UWO.  Accordingly, the Avaaz Foundation, dissatisfied with the response from the Ministers, lodged a petition for judicial review of the decision on 22nd May 2021.

Arguments

At the initial “permission stage” hearing of the petition, Lord Sandison determined that while there was a “sensible legal argument to be had” on the matters raised in the petition, it was lodged out of time, as the grounds capable of giving rise to the application had arisen more than three months before the petition was lodged.  In fact, the grounds of complaint had arisen by mid-2019 at the latest.

In response, Avaaz sought an extension of the time limit on the basis that the court ought to exercise its ‘equitable discretion’, and that to do otherwise would result in injustice.  A separate argument for extension was advanced on the basis of the application of EU law.

On behalf of Avaaz it was submitted that if the petition was not allowed to proceed, there would be no means by which the Scottish Minister’s approach to the UWO legislation could be challenged, in relation to this case or in future. It was also contended that the issues raised by the petition were of significant importance as they sought to ensure that the Scottish Ministers gave proper effect to the applicable money laundering and anti-corruption legislation derived from international obligations.

The Decision

Lord Sandison noted that the Scottish Ministers were unable to show any real prejudice that would flow from the petition being permitted to proceed, other than the public time and expense that would be incurred in dealing with it.  That time and expense would have been spent in dealing with the petition in any event had it been raised in time.

The question therefore was “whether the petition raises matters of such live and substantive public importance as to render it in the interests of justice to allow it to proceed”.  Some aspects of the petition related generally to UWOs, as opposed to Mr Trump specifically, and did meet the test.

Lord Sandison ultimately concluded that it was in the interests of justice to extend the time limit for lodging the petition, and the petition was allowed to proceed without condition or restriction.  He also disposed of the EU law question succinctly, on the basis that the ordinary rules and process of deciding whether to grant an extension applied, without needing to consider EU law.

Comment

The three months deadline for a judicial review is a cornerstone of the rules on judicial review: it is a key principle of good public administration that there should be certainty about the validity of such decisions.  But as in this case, there are occasions where there are considered to be good grounds to extend that deadline.  However, to avoid an argument about whether proceedings have been brought in time and to allow a petition to proceed expeditiously, the start date of the three months period should be accurately calculated.

MacRoberts Commercial Dispute Resolution team regularly advise on judicial review matters and the team can be contacted here.

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