A Practical Guide to Public Law Litigation in Scotland
Drummond, McCartney and Poole
PUBLISHER: W GREEN
There has been debate about whether print publication of legal texts will survive in this digital age. This slim volume is a good example demonstrating why it should. Digital materials may be very useful to find the text of rules or even the case authorities, but where better to find discussion of the practical application of the rules and authorities than in a convenient volume.
Notwithstanding its title, the text focuses primarily on judicial review. That is no bad thing when judicial review seems likely to continue to be a significant part of the workload of the Court of Session.
There is a chapter on funding, including a discussion of legal aid and, topically, protective expenses orders, much in vogue in environmental litigation. Discussion of the substance of judicial review (largely contained within chapter 3, "Starting the Action") is a useful summary. It could be said that much fuller analysis of issues such as the grounds for review can be found elsewhere. Nevertheless, especially for the practitioner for whom judicial review is not part of the daily diet, a conveniently readable summary is valuable.
More valuable still are the chapters which follow. It is all very well to know that one must get on with a petition for judicial review (or respond to one), but precisely what does that involve – and what are the pitfalls? This text hopes to assist practitioners to answer these questions. There are particularly useful discussions of relatively recent innovations in Scottish judicial review practice, such as the introduction of time limits. Time limits are the litigator's nightmare, so well worth every word of coverage in the text. In addition, there is a full discussion on the question of permission to proceed, applicable only since 2015. That very helpfully pulls together the learning from the case law to date on this relatively novel topic, and does not shirk from recognising the tensions between saving parties from the cost of having to respond to the hopeless or very weak case while not stifling access to justice.
Chapters follow on what is likely to happen at the hearings in a judicial review petition. The view of experienced practitioners on this type of topic is unlikely to be found elsewhere.
A gentle criticism might be offered that a less clumsy chapter title than "Miscellaneous Things That Might Happen During An Action" might have been found. Nevertheless this miscellany of issues – from parties wishing to join the action through case preparation to motions – may well assist with the reality that something not envisaged when the process was started will crop up.
There is a useful appendix containing, among other things, a style of petition for judicial review and of answers to a petition.
This reviewer can add a footnote to a footnote (fn 101 on p 76): the reclaimers in Ali (Iraq) did apply for permission to appeal to the Supreme Court, but that was finally refused by the Supreme Court on 3 April 2020 on the ground that there was no arguable point of law.
In conclusion, for succinctness it is not possible to improve on the summary of this text by the writer of the foreword, no less than Lord Carloway, who describes it as an "excellent exploration of the subject from a highly realistic viewpoint".
R Craig Connal QC, Pinsent Masons
The review editor is David J Dickson
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