Jonathan Mitchell QC

The Court of Session meets article 6 of the ECHR

JM — Mon, 22 Feb 2010 20:55:17 +0000

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.

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Success rate in judicial review petitions in Scotland

JM — Tue, 09 Feb 2010 00:10:40 +0000

This post quotes in full a response by the Office of the Advocate General to a recent freedom of information request by Alan Caskie, an advocate specialising in judicial review and particularly asylum and immigration. 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 pretty clear that the paying party lost .

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So last year

JM — Mon, 01 Feb 2010 00:20:56 +0000

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says that, on enquiring of Scottish Courts why the opinion had been removed, he was told " On occasion opinions can be withdrawn if it is brought to the Court’s attention that it contains confidential information, which could possibly cause prejudice to a party. The opinion has now been redacted by his Lordship...". It seems, though, that nobody told BAILII, which continued to publish the opinion here. Sometime in January 2010 a copy went back on Scotcourts here, but I haven't looked to see what the differences are. Douglas, however, points out that the version published at 2009 SLT 1180 seems to be the original version as on BAILII. The interest of this, other than the obvious point that the failure to withdraw the opinion effectively shows the difficulty in concealing information once published on the internet, is that it puts into sharp focus the practice of the Scottish courts in publishing personally confidential, if not commercially sensitive, information relative to litigants and witnesses; see my earlier article on privacy in case reporting. See on this now the Supreme Court's decision last week in Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1. At the Four Jurisdictions Conference which I've been attending this weekend in Ireland, Janys Scott QC gave an interesting paper on this issue which I hope to see published on the Murray Stable News and Articles site. More follows…

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Review of the year

JM — Thu, 17 Dec 2009 14:40:30 +0000

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 [...]

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Judicial review of the Upper Tribunal

JM — Mon, 14 Dec 2009 23:44:36 +0000

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. [More]

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Rights to environmental information

JM — Tue, 10 Nov 2009 01:30:57 +0000

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, 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/EEC and its implementing regulations, the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 are tighter ((Following the Aarhus Convention of 1998.)), 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.

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The Report of the Civil Courts Review

JM — Wed, 30 Sep 2009 12:12:43 +0000

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.

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Forthcoming conference: Environmental Justice, Human Rights, and Environmental Law

JM — Tue, 29 Sep 2009 22:02:09 +0000

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;

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Civil Justice Review

JM — Thu, 24 Sep 2009 16:52:07 +0000

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.

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Today’s problems in the Sheriff Court

JM — Mon, 07 Sep 2009 23:06:38 +0000

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 an uncompleted proof in another case.

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