FOSSIL fuel giant Ineos has won the right to a judicial review of the Scottish Government’s decisions that have effectively banned fracking.

The company which runs the Grangemouth oil refinery has also won the chance to sue the Government for damages for a breach of its human rights.

Ineos Upstream and Reach Coal Seam Gas went to court to challenge the Government’s decisions taken in 2015 and 2017 to have a moratorium on unconventional oil and gas which includes fracking, and to make that moratorium permanent.

In a judgement issued by Lord Pentland at the Court of Session, the two companies were granted a judicial review to take place in May and which will consider a claim for damages under Human Rights laws.

In court Lord Pentland said the claim was in an “undeveloped state” while James Mure QC on behalf of the Lord Advocate argued that the 2015 decisions were ‘time-barred’ for judicial review as an application to the courts needs to be made within three months of the decision.

Anna Poole, QC for the firms, said it was proposed to offer a schedule which would give more detail of the claim. But she told the court that because it was such a large exercise it required a team of people to work on valuations, rather just one individual. She said that in the announcements to the Scottish Parliament on the issue it was said it had been mindful of the effect on business – both firms have said their business has been affected by the 2015 and 2017 decisions.

Lord Pentland said in his judgement: “I acknowledge that there may prove to be force in the respondent’s [Scottish Government’s] arguments on time-bar when the issues are comprehensively explored at a substantive hearing, with the advantage of full and developed legal argument on both sides.

“For the present, I must ask myself simply whether the petitioners’ [the two companies’] position on the time-bar aspect of the case is fanciful, speculative or unrealistic. Seen through that lens, the answer to the question that arises at this stage is, in my view, clear. I do not consider that it can be said that the petitioners’ arguments on the time-bar point are fanciful or unrealistic.

“On a provisional view, there may be some possible merit in the proposition that the 2015 and 2017 decisions are closely inter-linked and that this is significant in the wider context of the issues that arise in the case.”

A judicial review is only ever allowed when it has some chance of success and Lord Pentland, while noting that the hurdle for successfully gaining a judicial review was low, stated: “The respondent accepts that the petitioners have a sufficient interest in the whole subject matter of the present application for judicial review, including the challenge to the 2015 decisions, and that they have a real prospect of success insofar as the petition challenges the 2017 decisions.”

He added: “In order to show that he or she has a real prospect of success the applicant for judicial review need only demonstrate that he or she has a case which enjoys a realistic chance of succeeding in the sense that the applicant’s contentions are not fanciful or unrealistic.”

The decision of the Court is undoubtedly a blow for the Scottish Government and anti-fracking campaigners. The Government said it would be “inappropriate” to comment while the case is still ongoing.