Judge flags up lawyers' duties under new judicial review procedure
The court expects judicial review cases that reach the stage of a procedural hearing to be well prepared and efficiently presented, a Court of Session judge said yesterday.
In an opinion delivered "to assist practitioners in responding positively to the demands and spirit of the new rules governing judicial review petitions", Lady Wolffe said that three of the first cases to have passed the new permission stage had come before her for a procedural hearing. In each case the court had ordered further preparatory steps to be taken ahead of that hearing, but it was "apparent that there had been non-compliance, to a greater or lesser degree, with the orders pronounced at the permission stage".
There had been failures to lodge documents, or to mark them to indicate the parts on which it was intended to rely, and to lodge bundles of authorities or to mark them similarly. Also none of the counsel who appeared for the petitioners was the counsel principally instructed in the matter, which "hampered" the discussion in court about the nature and scope of the substantive hearing to be fixed.
In light of this, Lady Wolffe said she wanted to assist by explaining to practitioners what the court was entitled to expect. "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", she commented. That was why, if granting permission, the court will usually also pronounce orders requiring notes of argument and/or statements of issues, and bundles of documents and authorities, duly marked up. Where a bundle was required, parties should cooperate to produce a joint bundle.
Bundles should also be assembled according to some ordering principle, properly paginated and without duplication, and with only those documents or cases that were likely to be relied on, especially if of great length.
She 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."