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 business¹. 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 ² 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‘³, 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 ⁴.’ Continue Reading »

1. A major exception is statutory appeals against tribunals under Rule 41.19; these are (at least superficially) unaffected. [back]
2. For the transitional provisions, see paragraph 8. [back]
3. The Review report is appendix 2 to the Civil Courts Review; at volume 2 page 245. [back]
4. Volume 2, page 260. [back]

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 lost¹.

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 »

1. Alan adds: “I have spoken to the solicitor who replied to me. There are two reasons for the disparity in numbers served and awards (or no awards) of expenses. There is a proportion of cases that are served where the Home Office conceded at once and no action was taken before the Court, or the Petitioner for a variety of reasons does not proceed. There was also a number that were served during one year but not disposed of till the next, so the numbers will never marry up. So for example of 129 served in 2007, 93 were disposed of.“ [back]

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 »