In February of last year, I wrote an article about the changes that were to be made to the rules for bringing a Judicial Review in Scotland. These were scheduled to come into force in October 2016. We have now been using the new system for almost a year, and I thought it was a good time to provide an update on how these new rules are working in practice.
The main changes to the rules were the introduction of a time bar of 3 months from the date of the decision complained about and the introduction of a permission stage.
Were these changes for the better? I am not entirely convinced.
Time Limit
The three month time limit is being strictly enforced. It is not a long period of time, and although the idea is to ensure that cases are brought before the Court quickly and dealt with efficiently, some practical issues have been identified:
- It can take a long time for a client to find suitable legal representation. There are relatively few specialists in this area. Once they have found a solicitor, the client often requires to apply for Legal Aid which, in itself, can take 3 months to be determined. As a result, the majority of new cases require to be raised and sisted (frozen) rather than any progress being made.
- There is a 28-day limit on the length of sist that can be applied for when waiting for Legal Aid. Again, although this is effective in putting pressure on the Board to make determinations, it is not actually making things more efficient. Often three motions are required, with the associated costs, rather than just one.
- Although, in my view, a time limit is a good idea, it can often be beneficial to have a period of time to discuss matters with the “other side” in the judicial review process. Often these types of cases can be resolved without court intervention, saving time and expense for all involved. The introduction of a time limit has increased the amount of cases being lodged as people simply cannot afford to miss the deadline. However, there is a not insignificant proportion of petitions being dismissed once agreement has been reached between parties extra-judicially.
Permission Hearings
The test for permission to be granted is a very low one. Although permission hearings are being scheduled, they are, in my experience, few and far between. As Counsel has been instructed, has given views on prospects of success, drafted and signed the Petition, you can, perhaps, see why.
The timescale between a Petition being lodged, Answers being lodged by any Respondents, and a decision being made on permission is meant to be 14 days in accordance with the Rules. However, given the amount of other court business and the time taken by Judges to read the papers, this has not been the case. In some cases, we have been waiting for almost 6 weeks for a decision to be made.
Once permission has been granted the timescales for further procedure are extremely tight. All procedural aspects require to be dealt with in around 4 to 6 weeks, including the lodging of adjusted pleadings, Affidavits, Notes of Argument, Statements of Issues, Productions and Authorities. It can be quite a challenge!
So, my view, all in all, is that although change was required it is not, perhaps, as plain-sailing as we might have envisaged. I expect there will be some changes in the pipeline to streamline the process.
My advice, as always, is to seek legal advice as soon as possible to allow as much time as possible for matters to be investigated and progressed. I would be happy to address any queries you may have – lmcdonagh@drummondmiller.co.uk