This blog looks at the limited circumstances where there is a requirement to take steps to contact the prospective respondent to resolve the dispute before raising a judicial review, and other situations where it may be appropriate to do so.

This blog looks at the limited circumstances where there is a requirement to take steps to contact the prospective respondent to resolve the dispute before raising a judicial review, and other situations where it may be appropriate to do so.

 

This is the last blog in this series before Christmas.  Further blogs will resume in mid-January 2017.

 

 

Part 8:  Pre-action Requirements

 

In general, in Scotland there is no procedural requirement to take any specific steps to try to resolve matters before bringing initiating a judicial review.  For legally aided petitioners the position may be slightly different because of the expectation of the Scottish Legal Aid Board that they are told what steps have been taken to resolve the matter extra-judicially as part of their assessment as to the reasonableness of granting legal aid (see Part 3).  The circumstances of a specific situation might also indicate that matters could be resolved without raising court proceedings.  If that has not happened there could be a risk of a petitioner not being awarded expenses if the court considers that it was unreasonable to go straight to court without giving the respondent the chance of voluntarily rectifying the matter.  Petitioners should also be aware that if they are wanting to obtain an interim remedy against the respondent, that respondent may have a caveat (see Part 11).

 

This general position is altered in respect of immigration and asylum cases where there is a prospect that the petitioner might be removed from the country.  This had caused problems because that risk meant that the Court of Session had to regularly deal with petitions which had been raised and presented to the court as a matter of urgency to obtain an interim order preventing the imminent removal of the petitioner.  Practice Note 5 of 2015 states that the Home Office has provided an undertaking to the Court that where it is notified of a stated intention to raise judicial review proceedings in a pre-proceedings letter in accordance with the procedure set out in this Practice Note, such notification, of itself, will not cause the Home Office (i) to initiate or accelerate a decision to issue a removal direction, (ii) to initiate or accelerate the removal of the person from the United Kingdom and access to Scottish jurisdiction or (iii) to use the notification as a factor in the initiation or acceleration of such directions or decisions.  Recommendations for the content of the pre-proceedings letter and how it should be intimated are set out in the Practice Note.  The Home Office will not remove the individual before it has responded to the letter.  Except in cases of urgency, the individual’s agents should allow 14 days after the delivery of the pre-proceedings letter for the Home Office to respond to that letter before commencing proceedings.  Where removal directions have already been issued, there is no need to issue a pre-proceedings letter before commencing a judicial review petition.

 

Legislative provisions

 

Practice Note No. 5 of 2015, paragraphs 14 – 20 and Appendix 3