Jonathan Mitchell QC

In what seems to be an odd coincidence, there were two apparently unrelated developments this month concerning the systemic problem of delay in civil appeals in the Inner House: one in Edinburgh, one in Strasbourg where the European Court of Human Rights considered the practice and procedure of the Court of Session.

First, on 4 February, the Court of Session enacted a major change to the rules governing most Inner House business. The Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Causes in the Inner House) 2010, SSI 2010/30, comes into force on 5th April 2010 and replaces Chapters 38, 39, and 40 of the Rules of Court. This substantially follows the recommendations of Lord Penrose’s ‘Review of Inner House Business‘, which adopted the view of a researcher, Dr Wadia, that ‘There is a working culture within the Inner House which appears to be unmanaged and unmanageable in its current form .’ Continue Reading »

This post quotes in full a recent response by the Office of the Advocate General to a freedom of information request by Alan Caskie, an advocate specialising in asylum and immigration law. This response shows that the success rate for petitions in this area is high, and rising year by year. Awards of expenses are an acid test of success; there may be many reasons why no award is asked for or made, but if one is asked for and made it is reasonably clear that the paying party lost.

In the tables below, which show all such cases (together with Inner House appeals) in which an award of expenses was either conceded by one side or the other, or made by the Court, we see for example that in the year 2009 there were exactly 100 asylum and immigration petitions in which an award of expenses was either conceded or made. In only twelve was the award against the petitioner. In no less than seventy-six, it was in favour of the petitioner. Continue Reading »

Answers to last month’s quiz below. Nobody got more than one question right, so rather than embarrass my loyal readership I am awarding myself the prize in terms of Rule 5.

1. Which published Court of Session opinion was removed from the Scotcourts website at the request of one party because its contents were said to be commercially confidential? Hat-tip to Douglas Macgregor of Brodies for this one, and also for supplying some of the background. The case is BSA International v Irvine 2009 CSOH 77, an opinion of Lord Glennie’s which discusses the duties of expert witnesses and also describes a potentially significant distinction between Scots and English law as to legal professional privilege. Douglas says Continue Reading »

Not this Calvin…

Well, I’m knocking off until the New Year. For those among my loyal readers who can’t keep away from the law over the break, I offer a prize of a bottle of the Faculty of Advocates finest Reading Room Claret to the best set of answers to this quiz on outré legal events of the last 365 days. Competition closes at Hogmanay midnight; answers by way of the comment form below, which is moderated so nothing will be published until next term. As a tie-breaker, points will be given for wit, imagination, and good guesses, so don’t feel you have to pass because you haven’t the faintest idea what the answer is. Multiple attempts are permitted, but may not be counted at my discretion. If you feel you need to know what the other rules are, they’re here, with credit and thanks to those great philosophers Calvin and Hobbes. Or you can ask, though I don’t promise to answer. And the compliments of the season to you. Continue Reading »

Statutory provisions seeking to oust the jurisdiction of the courts have a long and inglorious history. Their desired object, to exclude any form of review by an independent court, is practically impossible to achieve. Some years ago, someone thought up a new wheeze: simply describe the body which it is sought to protect as a ‘superior court of record‘ and then assert loudly that the nature of such a court was that it could not be judicially reviewed; all rather reminiscent of the old South African line that Parliament could be declared a court so as to allow a bare majority to change the constitution (Minister of the Interior v Harris 1952 (4) SA 769). This phrase has, since the Leggatt Report, become fashionable with recently-created tribunals. Examples include the Special Immigration Appeals Commission and the Upper Tribunal, both of which are now declared to be such a court; the latter is becoming an increasingly important, if overlooked, part of the judicial firmament. Never mind that ‘the precise legal significance of this expression is not entirely clear, even in England, and possibly not at all in Scotland‘; indeed, as noted below, it has ‘no recognised meaning in Scotland‘. The simple argument was that superior courts of record could not be subject to judicial review, because they couldn’t be.

In the recent English case of Cart & Ors, R (on the application of) v The Upper Tribunal & Ors [2009] EWHC 3052 (Admin), this argument was run by Government and rejected by the court. Continue Reading »

At the talk I gave on this subject to the conference on environmental justice organised by the Environmental Law Centre last Monday, I promised to post a synopsis of the issues discussed, and the handouts on ambit and on appeal routes, here.

The background

There has since 2005 been a general right to freedom of information held by or on behalf of public authorities in the United Kingdom. The right to access to environmental information, however, long predates this, going back to Directive 90/313/EEC and its implementing regulations; although the scheme now in force, Directive 2003/4/EC and its implementing regulations, the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 is tighter, the basic scheme has been in place since 1992. Nevertheless, this scheme has attracted far less attention than the general scheme of the two Freedom of Information Acts, the UK Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002, which only came into force thirteen years later. Continue Reading »

As anticipated, the report was published this morning at this address. It is in two volumes, available as pdf files; Volume 1 is 375 pages and Volume 2 is 323. There is a nine-page synopsis which is quoted below in its entirety. Comment will follow later. Continue Reading »

On Monday 2nd November the Centre for the Study of Human Rights Law and the Environmental Law Centre Scotland are co-hosting this conference at the Royal Concert Hall, 2 Sauchiehall Street, Glasgow. I’m speaking on rights to environmental information. The Environmental Information Regulations (there are two sets, UK and Scottish) don’t receive a lot of attention in comparison to the general scheme of the two Freedom of Information Acts, but they have a wider ambit, covering some private-sector organisations and companies who aren’t covered by general FOI legislation, and in some ways give those seeking information a better process than the Acts. Here’s an algorithm of the relationship between the different schemes I did before; Continue Reading »

Invitations to the publication of the Civil Justice Review have just been issued for Wednesday 30 September at 11am in the Signet Library. I’m told the Review will be published electronically at that time; address unknown but perhaps here.

This morning I turned up at Edinburgh Sheriff Court for a five-day hearing in an unjust enrichment action, with senior counsel also on the other side. There had been lengthy discussions as to possible settlement which had gone nowhere and both sides were fully prepared to fight. Aware of the problems this note describes, the solicitors on both sides had independently phoned the court last week to confirm that the case was allocated to a sheriff, who was named, and that court time was available. When we arrived, however, we were told that the sheriff we had been told was to hear the case was not available; nor was any other sheriff; and there was no chance even of one the next day or later in the week. No sheriff, indeed, had ever been available to hear the case; the one the administration had named to both solicitors had never even been told this, and was in fact hearing a part-heard proof in another case. Continue Reading »