Feb 09 2010

Success rate in judicial review petitions in Scotland

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. The vast majority of these were in cases that were settled before a full hearing.

I take a number of points from these tables.

First, there is no evidence of any widespread problem of what the Civil Courts Review called ‘unmeritorious‘ petitions2. Agents and counsel for petitioners seem to be doing a pretty good job filtering out such cases before they get to court. Given the uncertainties of litigation, a 76% hit rate is about the highest percentage realistically achievable; any higher figure would suggest they were dumping good cases.

Second, counsel for the OAG appear to be doing an equally good job identifying and settling the good cases before they go to a full hearing. In 2009, according to the Scotcourts website, there were only twelve substantive opinions issued in such petitions of which only two went in favour of the petitioner.

Third, the repeated claims of the UK Borders Agency that they are subject to a constant stream of petitions which should never have been brought and are simply there to vex honest civil servants are ill-founded. In its evidence to the Civil Courts Review, UKBA claimed “Cases of this kind are also generally dismissed very close to the First Hearing despite them being academic from almost immediately after First Orders has been granted.” In fact, the usual reason for dismissal seems to be that UKBA conceded. It is disappointing that the Review swallowed this self-serving and tendentious governmental account so uncritically. The agenda of UKBA is obvious; to stop proper judicial scrutiny of its often-appallingly poor decision making. It was recently reported that in one UKBA office any officer who approved an asylum application had a stuffed toy “grant monkey” placed on their desk by other members of staff as a badge of shame.

Fourth, current proposals to transfer such judicial reviews to the Upper Tribunal where there is still, more than a year after its establishment, no legal aid provision whatsoever are an affront to justice. They would be intelligible if there were no worthwhile petitions; but, as these figures show, there are many.

This is the OAG response to Alan:

You made a freedom of information request for:

“1. The number of petitions for Judicial Review that have been served on the Office of the Advocate General (“OAG”) during each of the past 5 years (2005 – 2009 inclusive), which have related to immigration matters or where OAG acted for the UK Borders Agency (“UKBA”), or its predecessors.

2. The number of cases where OAG acted for UKBA (or its predecessors) and/or the Secretary of State for the Home Department in Petitions for Judicial Review, or appeals to the Inner House; and

(a) the Advocate General (“AG”) obtained an award of expenses (whether or not that award was enforced); (b) no expenses due to or by any party; and
(c) expenses were awarded against the AG (whether by agreement or not).”

OAG is a UK government department. Therefore your request is being considered under the Freedom of Information Act 2000, rather than the Freedom of Information (Scotland) Act 2002.

We can now provide you with the following information:

1. OAG was served with 582 petitions for Judicial Review relating to immigration matters during in the period 2005-2009 inclusive. This breaks down by year as:

2005 – 59 petitions
2006 – 87 petitions
2007 – 129 petitions
2008 – 149 petitions
2009 – 158 petitions

2. Where OAG acted for UKBA (or its predecessors) and/or the Secretary of State for the Home Department in Petitions for Judicial Review, or appeals to the Inner House, the awards of expenses were as follows:

Petitions for Judicial Review

2005
Expenses awarded to the AG: 3
No expenses due to or by any party: 10
Expenses awarded against the AG: 7
Expenses awarded in part to the AG: 0

2006
Expenses awarded to the AG: 24
No expenses due to or by any party: 11
Expenses awarded against the AG: 16
Expenses awarded in part to the AG: 1

2007
Expenses awarded to the AG: 27
No expenses due to or by any party: 32
Expenses awarded against the AG: 53
Expenses awarded in part to the AG: 1

2008
Expenses awarded to the AG: 7
No expenses due to or by any party: 48
Expenses awarded against the AG: 55
Expenses awarded in part to the AG: 1

2009
Expenses awarded to the AG: 10
No expenses due to or by any party: 10
Expenses awarded against the AG: 76
Expenses awarded in part to the AG: 2

Applications for Leave to Appeal

2005
Expenses awarded to the AG: 1
No expenses due to or by any party: 0
Expenses awarded against the AG: 0
Expenses awarded in part to the AG: 0

2006
Expenses awarded to the AG: 10
No expenses due to or by any party: 4
Expenses awarded against the AG: 5
Expenses awarded in part to the AG: 0

2007
Expenses awarded to the AG: 9
No expenses due to or by any party: 11
Expenses awarded against the AG: 13
Expenses awarded in part to the AG: 0

2008
Expenses awarded to the AG: 4
No expenses due to or by any party: 33
Expenses awarded against the AG: 10
Expenses awarded in part to the AG: 0

2009
Expenses awarded to the AG: 8
No expenses due to or by any party: 19
Expenses awarded against the AG: 13
Expenses awarded in part to the AG: 0

  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]
  2. Chapter 12, paragraph 40 [back]
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  1. [...] Jonathan Mitchell QC, a Scots advocate, has a very interesting piece: Success rate in judicial review petitions in Scotland [...]

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