Lorna Drummond, Frances McCartney and Anna Poole, A Practical Guide to Public Law Litigation in Scotland

Date01 September 2020
Published date01 September 2020

Embarking upon public law litigation, most particularly judicial review proceedings, is invariably a daunting prospect. And not just for the would-be petitioner but also for their advisors. It is inherent in the nature of judicial review that it can arise in almost any corner of the law where a public body is involved (or, given the limits on the competence of the Scottish Parliament, Scottish legislation is engaged). Thus, it is not the preserve of a specialist group of practitioners; public law litigation can land on the desk of almost anyone. Time is tight (three months from when the grounds of challenge first arise; but some statutes prescribe even shorter periods) and unlike an ordinary action, where the adjustment period can be used to refine a case that may have been drafted under pressure of time before it faces any judicial scrutiny, a petition for judicial review will go nowhere unless a Lord Ordinary is (or can be, at an oral hearing) persuaded that there is something in the complaints that are raised. Assuming permission is granted, a timetable will follow which works towards a substantive hearing within three months. For those more accustomed to private law litigation, with its comparatively generous limitation and prescriptive periods, the average judicial review will likely be over and done with at a point when ordinary litigation would still be months (if not years) from troubling the court. Accordingly, this is an area of law which has been crying out for an up-to-date, practical and accessible text to guide practitioners. Thankfully, that work has now arrived.

A Practical Guide to Public Law Litigation in Scotland does exactly what it says on the tin. It is a Scottish-orientated handbook to public law litigation. That it is Scottish-orientated is not a source of praise out of some sense of narrow legal nationalism. It is a source of praise because there has been nothing to guide practitioners as to the practicalities of public law litigation in Scotland since the system for judicial review was revamped in September 2015. There has been a temptation to turn to English texts for guidance on matters of procedure (more relevant since the Scottish rules for permission and time-limits were brought into broad alignment with the English Civil Procedure Rules (“CPR”)). But that was largely because those sources were more accessible than the fairly disparate collection of cases, primarily in the Outer House, where the court had sought to guide...

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