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A new breed of judicial review

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26-03-2015

Updated 26th March 2015.

Given the Government’s ongoing concern that the judicial review process for scrutinising public law decision making has led to a number of weak or unmeritorious claims being pursued, the Criminal Justice and Courts Act 2015 (“CJCA”) (which was given royal assent in February 2015), heralds a new phase in judicial review practice before the Courts.

On 16 March 2015, the Civil Procedure (Amendment No 2) Rules 2015 (“Civil rules”), which will implement inter alia certain changes introduced by the CJCA, were published.  These Civil rules are not yet in force and the provisions relating to judicial review will commence on the day the relevant sections of the CJCA come into force.       

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

Reduced judicial discretion

Under section 84 of the CJCA, a judge’s discretion to grant interim relief (ie an interim order) or leave for a claim to proceed to a substantive hearing will be limited in the future.  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 less claims being granted leave in the future.

This section of the CJCA, together with the relevant changes to the Civil Procedure Rules, will come into effect for proceedings issued in the High Court on or after 13 April 2015. However, section 84 will not come into force for judicial review proceedings considered by tribunals at this stage. Existing cases will not be affected.

Funds for pursuing cases

There has, for some time, been concern that defendants to a judicial review, even if they are successful are rarely able to recover some 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 that support, in accordance with the “rules of court” (which are separate to the Civil rules). 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 (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, who is identified as providing financial support for the proceedings.

Interveners and costs

Under section 87 of the CJCA, in the future, an organisation that intervenes as a third party in proceedings (for example 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, that less interveners will be willing to take part in proceedings given the 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 one of the other grounds which imposes a cost liability).

These changes relating to interveners will come into effect for proceedings issued on or after 13 April 2015. Existing cases will not be affected.

Costs capping

It is currently possible for the court to make a Protective Costs Order (“PCO”) before the court 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 means that there is a greater risk of a higher financial liability for applicants because, in the future, any application for a PCO will only be determined at a later stage of the proceedings when greater cost will have been incurred. 

Conclusion

As a result of the changes outlined above, it is possible that a number of claims that may have previously been granted permission to proceed, will be “weeded out” at an early stage in the future.  This will, the Government hopes, reduce the number of technical challenges which are often only brought as a delaying tactic.  This, it is argued, drains not only the resources of the court but also that of public bodies.

Defendants will in the future be able to rely on an additional argument, when seeking to defend a challenge, that if the outcome would not have been substantially different (had the conduct complained of not occurred), then the claim should be refused.  That together, with interveners being subject to a higher costs risk, and the ability of the court to make costs orders against those not involved in, but “bank-rolling” the proceedings, may mean that less 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.  So that those who are privately funding an unsuccessful applicant, who may have had the benefit of a PCO, will have to pay some of the defendants costs.  It remains to be seen whether the changes introduced impact on the number of claims pursued and whether less public funds are involved in financing or defending claims in the future.

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