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Education e-briefing: A new breed of judicial review

  • United Kingdom
  • Education - Briefings


There is intense pressure on all education sector bodies to provide educational services in the face of reduced funding, greater competition and the uncertainties of the longer term impact of Government policies.  To ensure future survival and protect existing revenue streams, judicial review challenges can be brought against funding bodies and regulators to ensure scrutiny over public law decisions.  Likewise, if students consider they have not received an adequate level of service, they may pursue a judicial review challenge in order to obtain a remedy from the court.  The Government is concerned that a number of weak or unmeritorious claims are being pursued and the Criminal Justice and Courts Act 2015 (“CJCA”) (which was given royal assent in February 2015), heralds a new phase in judicial review practice. 

We summarise below the key changes that, when the CJCA comes into force*, may make it more difficult for applicants to pursue successful claims in the future.

Reduced judicial discretion

When the changes are in force a judge’s discretion to grant interim relief (i.e. an interim order) or leave for a claim to proceed to a substantive hearing will be limited.  If it is decided that the outcome of the claim would not have been “substantially different” if the “conduct complained of had not occurred”, then interim relief or leave must be refused.  There is an exception to this if a case is considered to be of “exceptional public interest”.  There is a concern though that this change means that, in practice, judges could be determining the merits of the case at an earlier stage which may lead to fewer claims being granted leave in the future.

Funds for pursuing cases

There has, for some time, been concern about the ability of defendants to a judicial review, even if they are successful, to recover any of their legal fees from applicants, who may not have sufficient funds to cover such costs. The CJCA seeks to address this by imposing a requirement for the applicant to provide the court with information about the funds available to pursue the claim and the source of those funds, in accordance with the “rules of court” (which are separate to the Civil rules (see footnote below)). It is unclear when these rules of court (which will cover funding issues) will be implemented. 

If the applicant is a corporate body and is unable to demonstrate that it is likely to have resources to meet the cost liabilities arising from the application, then it must provide information about its shareholders/members and their ability to provide financial support for the application to the court.  If an individual applicant receives support from third parties (including relatives) above a specified level (contained in the court rules), the source of that support must be identified.  The court must take this information into account when determining whether to order costs to be paid by a person, who is not a party to the proceedings, but is identified as providing financial support for the proceedings.

Interveners and costs

As a result of the CJCA, in the future, an organisation that intervenes as a third party in proceedings (such as charities, NGOs, single/specific issue bodies, such as the Equality and Human Rights Commission) may be required to pay the costs parties incur as a result of their involvement in the proceedings.  This will only happen if certain conditions are met.  Such conditions include the intervener acting as if they were the applicant, or behaving unreasonably or failing to provide “significant assistance to the court”.  It may be that as a result of these changes, fewer interveners will be willing to take part in proceedings where there is a level of financial risk. If they do decide to become involved they will need to ensure that their arguments are framed in a way that avoids a finding by the court that they have been of no assistance (or have infringed one of the other grounds which imposes a cost liability).

Costs capping

It is currently possible for the court to make a Protective Costs order (“PCO”) before it has determined whether to grant permission for the claim to proceed to a hearing.  A PCO limits the amount of costs an unsuccessful applicant would have to pay.  In the future when the CJCA and rules of court come into force, PCOs will only be available if permission is granted.  This creates greater risk of higher financial liability for applicants because any application for a PCO will only be determined at a later stage of the proceedings when more costs are likely to have been incurred.


As a result of the changes outlined above, it is anticipated that a number of claims that may previously have been granted permission to proceed, will in the future be “weeded out” at an early stage.  This will, the Government hopes, reduce the number of technical challenges which are often brought as a delaying tactic.  This of course will impact on the prospects of any person or organisation pursuing a successful challenge.

Defendants will in the future be able to rely on an additional argument, when seeking to defend a challenge, that the outcome would not have been substantially different (had the conduct complained of not occurred). Where this is the case, the claim should be refused by the court.  That together, with interveners in the future being subject to a higher costs risk, and the ability of the court to make costs orders against those who are  not parties, but are “bank-rolling” the proceedings, may mean that fewer applicants pursue claims. 

Some commentators consider that the changes introduced by the CJCA will result in a fairer division of the costs involved with judicial review.  Those who are privately funding an unsuccessful applicant, who may previously have had the benefit of a PCO, will, in the future, have to pay some of the defendants costs.   These changes may have the effect of limiting the opportunities to challenge decisions of funding bodies or regulators, but may be welcomed by those organisations subject to multiple challenges from students. It remains to be seen whether such changes impact on the number of claims pursued by and against education sector bodies and whether the level of public funds involved in financing or defending claims in the future is reduced.