Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 177

P1162/15, P1175/15 & P1166/15

NOTE BY LADY WOLFFE

In

The separate petitions for judicial review by

(1) ONYEKA KINGSLEY MENUBA;  (2) JOSEPH ODION OCHIEMHEN; and

(3) ANUP POKHREL

Petitioners

Of decisions of the Secretary of State for the Home Department to curtail each petitioners’ leave to remain in the United Kingdom with power to remove

First and Second petitioner:  C Jones;  Drummond Miller LLP

Third Petitioner;  Stein;  Drummond Miller LLP

Respondent:  Maciver;  Office of the Advocate General

 

22 December 2015

 

[1]        These are some of the first petitions for judicial review for which permission has 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.

[2]        In each of these three petitions 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.

[3]        When these three cases called before me at the procedural hearing on 11 December, it was apparent that there had been non-compliance, to a greater or lesser degree, with the orders pronounced at the permission stage.  In particular, there had been an omission in one or more of these cases 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)), or there had been a failure to lodge the bundle of authorities, or (if 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)).

[4]        Furthermore, notwithstanding that it is envisaged in the new chapter 58 rules that the manner of substantive hearing is determined at the procedural hearing, none of the counsel appearing before me 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.

[5]        In the light of the foregoing and to assist practitioners  in responding positively  to the demands and spirit of the new rules governing judicial review petitions, it may assist to explain to practitioners what the court is entitled to expect in respect  of the efficient progress of judicial reviews conducted under the new rules.

[6]        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. Where there is an order for a bundle of documents (or a bundle of authorities), a joint bundle should be produced. Separate bundles of documents (or separate bundles of authorities) are to be avoided.  Parties will need to liaise in a responsible way to achieve this.

[7]        The expectation is also that the bundle of documents and the bundle of authorities be assembled according to some ordering principle; for documents to be properly paginated and that there be no duplication of cases or documents.  Parties should also refrain from submitting documents (or cases) that are unlikely to be relied upon, especially if of great length.  In that regard, practitioners should pay heed to Sedley’s “The Laws of Documents”, in Ashes and Sparks:  Essays on Law and Justice, Sir Stephen Sedley at pages 228-230.  

[8]        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.

[9]        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.