Mon 27 Jun 2016

Expenses & Judicial Review: The Petition of Mash Holdings Limited

On 23 June 2016, Lord Bannatyne issued his decision in the petition of Mash Holdings limited (a company owned by businessman and owner of Newcastle FC, Mike Ashley) which was for the judicial review of a decision of the Scottish Football Association to approve David King as a fit and proper person to hold the position of a director of Rangers International Football Club plc. The basis for the petition was that the SFA's decision was vitiated on the basis that it was irrational and because of the failure of the respondent to state the reasons for its decision.

The petition was brought because the petitioners were aware of a number of matters which were in the public domain which caused them to believe that David King was not a fit and proper person in terms of the legislation. They wrote to the SFA drawing these matters to their attention and, in response, the SFA effectively told them that the matter was none of their business. Following that rather abrupt response, the petitioner tried again but this time received no reply at all to their correspondence.

However, during the adjustment period in the petition the respondents made detailed averments addressing the various points of concern which the petitioners had regarding Mr King's fitness. None of this information had been available to them before. Accordingly, the petitioners requested that their petition was refused on the basis that they were now satisfied with the reasons given and, had this information been provided before, the petition would never have been raised in the first place. That motion was granted and the respondents then moved for expenses.

The petitioners argued that expenses should not be awarded against them. The petition was only raised because the respondent had given inadequate reasons for its decision and, having been given the reasons during the process, it was now satisfied that the petition did not need to proceed. The respondents argued that the usual rule should be followed and that expenses should follow success. They had five lines of defence to the petition all of which had been maintained throughout and so there was no reason to depart from the usual rule.

Lord Bannatyne agreed with the respondents and held that there was no proper basis for departing from the usual rule. He indicated that the petitioners' argument was misconceived and that as they had abandoned their action the respondents had been successful and expenses should, therefore, follow.


This judicial review was challenging the failure of a decision-making body to provide adequate reasons for its decision. It was entirely up to the respondents whether they provided reasons or not. They had been asked to do so by the petitioners, and refused. They chose not to do so until after the petition was raised, at which point they provided the reasons which the petitioners had been seeking all along.

In these circumstances, it is a little difficult to see why the petitioners should not be entitled to drop their petition without any expenses liability. The whole purpose of the petition was to insist on adequate reasons being given by the respondents, not to challenge reasons already provided. The petitioners would have already incurred significant costs of their own in pursuing the petition and there was nothing which could obviously have been gained by the petitioners proceeding to a hearing once adequate reasons had been provided.

The Lord Ordinary held that the respondents had been successful. It is true, of course, that they were successful in that the petition was dismissed. But it is, at least, doubtful as to whether they were successful in maintaining the position that was originally challenged by the petitioners - i.e. that they had failed to give proper reasons for their decision. Indeed, on one view, the only success in the petition was by the petitioners.

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