Jim Donegan was shot dead in his car as he waited to pick up one of his children in December 2018.
The Ombudsman is currently investigating how a potential dissident republican threat against the 43-year-old was not passed on by police before the killing.
Mr Donegan’s family believe he would still be alive if the information had been relayed sooner.
Despite the Ombudsman’s decision to launch a probe, the victim’s son, Cris Donegan, brought legal action against the PSNI for not referring the matter under statutory provisions.
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His lawyers claim there is a legal obligation on the Chief Constable to make a referral if it appears that an officer’s conduct may have resulted in someone’s death, or could merit disciplinary proceedings.
Mr Justice Humphreys confirmed that he was granting leave to seek a judicial review.
He said: “There is at least an arguable case that the Chief Constable acted in breach of his duty by failing to refer the matter under consideration to PONI (Police Ombudsman of Northern Ireland).”
Mr Donegan was gunned down at the gates of St Mary’s Christian Brothers School on the Glen Road. In the days after the murder his family discovered police were aware of a specific threat to his life, the court heard.
The information was that “dissident republicans intended to target an individual who regularly collected his child from school on the Glen Road”.
In an affidavit the victim’s son expressed his shock at finding out police information was not passed on.
“I believe if this information had been provided to my father then he would still be alive today,” he stated.
“Any previous threats relayed to my father were of a generic nature, this was far more detailed.”
The family also said they were informed by police that the gunman was seen at the scene the previous Thursday.
Counsel for the victim’s son stressed the challenge centred on the route taken to notify the Ombudsman.
A barrister for the PSNI countered that the challenge was now academic.
However, Mr Justice Humphreys ruled that the case should proceed to a full hearing.
“Public confidence in policing requires accountability both in terms of substance and procedure,” he said.