Outer House judge permits out-of-time petition challenging Scottish Ministers’ failure to investigate Donald Trump’s Scottish assets

A judge in the Outer House of the Court of Session has permitted a petition by a US-based non-profit organisation for judicial review of the approach taken by the Scottish Ministers in applying for Unexplained Wealth Orders to proceed.

The Avaaz Foundation also sought a determination of whether or not ministers had acted unlawfully in failing to make an application for an UWO in relation to the Scottish assets of former US President Donald Trump.

The petition was heard by Lord Sandison. The petitioner was represented by Springham QC and Welsh, advocate, and the respondents by Crawford QC and Scullion, advocate.

Equitable jurisdiction

Prior to raising the petition, in April 2019 the petitioner had raised concerns about the lack of clarity on how the Trump Foundation had purchased its Scottish properties, and about the possibility of the Scottish ministers proceeding to seek an UWO in relation to the matter. Having been dissatisfied with the initial response of the ministers, it commenced political lobbying activities which resulted in a letter being written to the First Minister by Scottish Green MSP Patrick Harvie enquiring about the matter.

The letter, which was written in February 2020, was not responded to until July 2020. Having again been dissatisfied with the response, and with other answers obtained from the First Minister by Mr Harvie in November 2020 and in early 2021, the petition was ultimately lodged on 22 February 2021.

At the time the petitioners first brought the application to the court, Lord Sandison determined that the grounds capable of giving rise of the application had arisen more than three months before the petition was lodged and thus was not made timeously. Following this determination, the petitioner sought an extension of the time limit, having not stated in the initial petition that it sought one.

It was submitted for the petitioner that the court ought to exercise its equitable discretion to extend the three-month time limit, as to do otherwise would result in an injustice. If the petition were not to be allowed to proceed, there would be no obvious means whereby the Scottish ministers’ approach to the UWO legislation could now or in future be challenged, at least in its application to the affairs of Mr Trump, whether by the petitioner or anyone else.

Counsel for the petitioner further submitted that the issues raised by the petition were of considerable importance in the respect that they sought to have the respondents give proper effect to money laundering and anti-corruption legislation derived from international obligations. While it was recognised that detailed analysis of the merits of the petition was not possible at this time, it had already been determined that the application had a real prospect of success.

Political agenda

In his decision, Lord Sandison first considered whether the lateness of the petition was of any substantial effect, saying: “The ministers were unable to point to any prejudice that would flow from the petition now being permitted to proceed, beyond the public time and expense that would be incurred in dealing with it. That time and expense would have had to be devoted to dealing with the petition in any event had it been timeously raised.”

Lord Sandison said of the subject matter of the petition: “In these circumstances the question comes to be 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 out of time. I did not understand counsel for the ministers to deny that some aspects of the petition, being in essence those addressed to the general questions concerning responsibility for seeking UWOs as opposed to those addressing the specific case of Mr Trump, might accurately be characterised as having that quality.”

He continued: “On the other hand, the tenor of the petitioner’s briefing paper of April 2019 gives plain grounds for scepticism that its motivation in bringing the present proceedings is truly a desire to clarify the somewhat technical aspects of the general law which arise, as opposed to a desire to further a political agenda to oppose the interests of Mr Trump by any means available.”

Noting that counsel for the petitioner indicated that it would remain interested in taking the petition further should the specific issues concerning Mr Trump be removed, Lord Sandison went on to say: “Since the pre-litigation correspondence and dispute had all concerned Mr Trump’s case it would be artificial to require the petition to proceed on what would be an unhappily semi-abstract basis, and that in the event that the petition were to succeed in its general aims it would be unnecessary and unfortunate if the question of the import of the decision for Mr Trump’s case were to be left as a matter of inference only.”

He concluded: “On the whole then, having regard to the general and continuing public importance of the legal questions raised by the petition and the lack of specific prejudice to the Scottish ministers or others were it to be permitted to proceed out of time, I consider it to be in the interests of justice to extend the time limit for lodging the petition.”

The petition was therefore allowed to proceed without condition or restriction.

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