Judge explains court’s expectations under new judicial review procedure

A Court of Session judge has issued a note “to assist practitioners in responding positively to the demands and spirit of the new rules governing judicial review petitions”.

Lady Wolffe delivered the opinion in three of the first petitions for judicial review, for which permission had been granted under the new rules in chapter 58 of the Rules of the Court of Session, to reach the stage of the procedural hearing.

In each of the three petitions by Onyeka Kingsley Menuba, Joseph Odion Ochiemhen and Anup Pokhrel for judicial review of decisions of the Secretary of State for the Home Department to curtail each petitioner’s leave to remain in the United Kingdom with power to remove, permission had been granted by a Lord Ordinary and further orders made at that time that specified preparatory steps be taken before they called again at a procedural hearing.

However, when the cases called again Lady Wolffe said it was apparent that there had been “non-compliance, to a greater or lesser degree, with the orders pronounced at the permission stage”.

In one or more of these cases there had been a failure to lodge any relevant documents and/or a failure to mark them up to indicate any parts on which it was intended to rely - as envisaged by rule 58.11(2)(f).

There had also been a failure to lodge the bundle of authorities, or if they had been lodged there had been a failure to mark up the cases with the passages on which parties intend to rely - as envisaged by rule 58.11(2)(g).

Furthermore, notwithstanding that it is envisaged in the new chapter 58 rules that the manner of substantive hearing is determined at the procedural hearing, the judge noted that none of the counsel appearing before her for the petitioners was the counsel principally instructed in the matter.

“Their necessarily more limited understanding of the case hampered the discussion in court at the procedural hearing about the nature and scope of the substantive hearing to be fixed,” Lady Wolffe said.

In the light of these observations, the judge explained what the court is “entitled to expect in respect of the efficient progress of judicial reviews conducted under the new rules”.

In a written note, Lady Wolffe said: “The new rules in chapter 58 of the Rules of the Court of Session represent a step change in the presentation and conduct of petitions for judicial review. Generally speaking, the structure of the procedure found in new chapter 58 is designed to filter out cases with no real prospect of success or in which there is an insufficient interest on the part of the petitioner (at the permission stage), and to identify and define the arguments in those cases granted permission to proceed.

“If permission is granted, the emphasis is on a focused, disciplined analysis of the issues at an early stage and which are to be resolved by a swift and efficient judicial procedure. To that end, if the matter has been granted permission, at the same time the court will usually pronounce orders under rule 58.11(2), for example, requiring parties to lodge notes of argument and/or statements of issues, and also to lodge bundles of documents and of authorities with the passages to be relied upon having been marked up.”

She added that where there is an order for a bundle of documents or a bundle of authorities, a joint bundle should be produced and parties should liaise in a responsible way in order to avoid separate bundles being lodged.

Bundles of documents and authorities should be assembled according to some ordering principle, with documents properly paginated and without duplication.

Parties should also refrain from submitting documents or cases that are unlikely to be relied upon, she said.

The judge continued: “In order to make an informed decision at the procedural hearing as to the scope and duration of any substantive hearing, it is intended that the Lord Ordinary will generally review these items in advance of the procedural hearing. That cannot happen, however, if these items are not lodged, or not lodged until the morning of the procedural hearing.

“Having regard to the importance of the procedural hearing to the efficient progress of judicial review petitions, it is expected that the counsel or solicitor advocate principally instructed in the case also appear at the procedural hearing. If that is not possible, the legal representative appearing in lieu of the principally instructed representative requires to be appropriately briefed and prepared in order to assist the court fully in the discussions at the procedural hearing.

“The court’s expectation is that these cases will be well prepared and efficiently progressed commensurate with the spirit of, and what is intended to be the practice under, the new chapter 58 rules.”