The Petition and the Judicial Review
Now that the substantive hearing for the No Kingsford Stadium Ltd Judicial Review has concluded at the Court of Session in Edinburgh, we are in a position to share details of how we succeeded in taking Aberdeen City Council to court.
Why was a Judicial Review Required?
This was the only option open to us to challenge the decision made by Aberdeen City Council dated 23 April 2018 to grant planning permission in respect of application 170021/DPP, for the Kingsford Stadium development.
The steps required to get to court
NKSL had already engaged a highly reputable firm of solicitors, Gillespie Macandrew, to provide advice during the planning process. We chose them because they had recently been successful in a challenge very similar to ours (the challenge by a campaign group called STEPAL against Fife Council who had proposed building a new school with co-located training fields near Pipelands in St Andrews).
Here’s a brief run-down of the process:
A delegation from NKSL visited Gillespie Macandrew in Edinburgh to discuss the case, and agree the broader legal team. They suggested that we engage both a Senior and a Junior Counsel, if costs would permit.
23 April 2018
Our petition for Judicial Review had to be brought within 3 months of this date, so our legal team had to move quickly to review all the relevant documentation to come to a view on whether and what grounds of challenge existed.
We returned to Edinburgh to meet with our solicitors and Junior and Senior Counsel, who advised us that in their opinion we did have grounds to challenge the decision.
We instructed them to prepare a petition for Judicial Review of the Council’s decision.
There was then a period of considerable activity between our solicitors and us during which we were finding documents, facts and figures to help prepare the petition.
End July 2018
The petition (a 34 page document) was then lodged with the court and served on Aberdeen City Council and Aberdeen Football Club Plc as an interested party.
ACC and AFC then had 21 days to submit their response to our petition (known as ‘answers’).
August – November 2018
The court then considered the petition and answers as part of the permission stage. A petitioner must show it has standing (sufficient interest in the proceedings) and that there are real prospects of success before the court will allow the petition to proceed.
The court accepted that these tests had been met, without a hearing having to take place, and permission to proceed was granted.
The dates were then set for the procedural steps and the substantive hearing.
Protective Expenses order (PEO)
In the interim NKSL and its legal team had been busy preparing the necessary paperwork which would allow us to apply for a Protective Expenses Order (PEO).
“The great can protect themselves but the poor and humble require the arm and shield of the law” Andrew Jackson (1821).
Like the petition, this was a lengthy legal document, comprising a supporting note, a statement from one of the NKSL Director’s, and detailed financial information.
Our application went before a judge who granted the PEO based on papers only.
Having a PEO means that should our Judicial Review be unsuccessfull our liability for costs is capped at £5000. Equally should we win, the Council and Club are limited in their liability to NKSL.
So, with a PEO and petition both accepted by the court, we were now all set to go to into battle!
There were to be two hearings. A brief procedural hearing (at which parties simply confirm their readiness to proceed to full hearing, or not) and a 2 or 3 day substantive hearing.
In our case, Counsel representing all the parties agreed amongst themselves (outwith the court) that they were indeed prepared and that no other procedures were required, therefore the procedural hearing did not need to go ahead.
The Substantive Hearing
This was held in the Court of Session in Edinburgh in the last week of January 2019. The hearing was presided over by Lord Tyre. In court representing NKSL were our Senior and Junior Counsel, plus a Partner and a Solicitor from Gillespie Macandrew. ACC and AFC were similarly represented.
The proceedings opened with our QC, Ms Ailsa Wilson, outlining our arguments. Over the next few hours she went into more details about each of our arguments.
Then Ms Ruth Crawford, QC representing the Council responded to the arguments. Mr James Findlay, the QC representing AFC, then put forward his response.
At various points the Judge asked questions of the QCs.
Ms Wilson then replied to the responses made by the other QCs, before the proceedings were brought to a close.
Lord Tyre will now consider the arguments put forward and give his judgement in due course. This is expected to be within the next three months or so.
We were pleased with how the hearing went. Our legal team did a brilliant job of getting our arguments across. Having started out as a Facebook page and ‘offering to help out’, it was remarkable to have ended up with us as three directors sitting behind our legal team in court.
You might have read about it in the local papers and thought it was game over – we don’t believe so. We believe it’s anyone’s game, and now it will be up to the judge to decide.