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On 7th August 2015 I wrote a blog on changes to Judicial Review that have been introduced as part of the extensive Court Reform (Scotland) Act 2014.

In that piece I commented on a possible increased pressure on applicants to act quickly and obtain full, often costly, advice from a very early stage.

Since writing the original piece in August last year the reform of the rules for Judicial Review have been brought into force. From 22nd December 2015 all Petitions for Judicial Review will proceed under the new rules. The change in the rules has left many practitioners questioning what the court expects in terms of preparation.

To help clarify that, Lady Wolffe has now issued a guidance note to practitioners in relation to the courts’ expectation. As anticipated the courts are expecting a high level of preparation from the outset, despite the reduced time for lodging Petitions.

The first stage for the Petition is the Permission Stage where the Judge will determine if the Petition will proceed to a substantive hearing and, if so, how long will be required for such a hearing. This takes place at a procedural calling of the case. To decide if the Petition should advance the court expects to be addressed by counsel principally instructed and that their principal agents also attend, as opposed to, for example, Edinburgh agents who may have a limited understanding of the case. Further, they want all documents and authorities to be produced so that the presiding judge has time to consider the papers in advance of the hearing. All of this points to the court wanting the procedural hearing to be a forum for informed and focused discussion not simply a process of fixing further procedure. Parties should be ready to examine the issues.

Although called a procedural hearing, this hearing has a great deal of significance. There is a real risk of falling at the first hurdle if parties are not properly prepared. This is an onus that must fall more greatly on a Petitioner rather than a Respondent as the Judge will be scrutinising their interest in the action and if their case has prospects of success. If this test is not satisfied then the Petition will progress no further.

For those cases that progress to a substantive hearing, the judge will issue orders requiring parties to take specified preparatory steps before the action calls. It seems that the courts want parties to lodge joint bundles of documents. This is of course an effort to limit the duplication of documents lodged in court. However, it will involve co-operation and a greater liaison between parties than previously expected. Lady Wolffe has indicated that the parties should approach this exercise with discipline and has encouraged parties to only lodge productions and authorities that they actually intend to rely on. All of this echoes the Courts’ requirements in Appeal Hearings.

It will be interesting to see how the court keeps control of the procedural stage to prevent it falling into a full scale examination of the issues, especially given the high level of preparation that parties will need to undertake prior to the hearing and the appearance of principal agents and counsel.

Given the guidance it must be accepted that preparation for Judicial Reviews must now be undertaken at the earliest opportunity. Not only is there restricted time for lodging a Petition, there is also a need for parties to have their ducks in a row before the Petition is lodged. This preparation must be undertaken quicker than ever before. This underlines the comments made in my initial blog on the subject: parties must consult as soon as they consider that they have grounds to challenge a decision as their advisors will need to hit the ground running in order to meet the expectations of the court.

Deborah Edon, Associate

Chambers UK 2018

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