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Local Government Briefing Note 20 of 2013: Judicial Review: Proposals for further reform

  • United Kingdom
  • Local government - Briefing notes

01-10-2013

On 1 July 2013, following its consultation Judicial Review: proposals for reform, the Government introduced significant changes to the judicial review process.  The stated aim was to balance the need to ensure lawful public administration with the desire to reduce the number of unmeritorious claims being brought.  Changes included reducing the time limit for bringing a challenge against planning and procurement decisions and allowing the courts to filter out totally unmeritorious claims at an early stage in the process. 

Despite these changes the Government believes that more needs to be done to prevent abuse of the judicial review process and has launched a further consultation entitled Judicial Review – Proposals for further reform and containing an ambitiously long list of issues which the Government intends to tackle.

The new proposals are as follows:

1. Streamlining the legal process for determining planning challenges

There is concern that the current system is too slow at dealing with challenges to planning permissions for larger developments, causing projects to be delayed indefinitely or even abandoned, with a ‘chilling effect on development’. There are also concerns about non-specialist judges determining complex planning cases.

To deal with these concerns a Planning Fast-Track was introduced to the Administrative Court in July 2013 with the aim of identifying planning related challenges at an early stage and allocating them to specialist judges.  The new proposals, however, go a step further and propose the creation of a Specialist Planning Chamber in the Upper Tribunal with specialist planning judges.  All planning related judicial reviews and statutory challenges would be transferred to this new chamber, with a view to reassuring developers that challenges will be resolved quickly (in line with specific time limits) and by specialist judges.

2. Local authorities challenging infrastructure projects

The Planning Act 2008 places limits on when a local authority (or any other body) can challenge nationally significant infrastructure projects (any such judicial reviews must be brought within 6 weeks).  The new proposals consider whether there should be further restrictions on the extent to which local authorities can challenge such projects, potentially by encouraging (or compelling) local authorities to use alternatives such as mediation or arbitration.

3. Challenges to planning decisions under sections 288 and 289 of the Town and Country Planning Act 1990 – Legal aid

The circumstances in which legal aid is available for challenges to planning cases under sections 288 and 289 of the 1990 Act is already very limited.  The Consultation, however, seeks views on whether legal aid should be removed altogether for challenges to the Secretary of State’s planning decisions under these sections where an appeal has already been made to the Secretary of State (or an application called in).  The rationale for removing funding all together is that by this stage in the process individuals will already have had the opportunity to put their case to a planning authority or on appeal to a Planning Inspector or public inquiry.

4. Standing – restricting who can apply for judicial review

At present an applicant for judicial review must have “sufficient interest in the matter to which the application relates”.  The Government believes that, over time, this test has been interpreted far too widely by the Courts, resulting in claims often being brought by campaign groups (sometimes formed for the very purpose of bringing legal challenges and avoiding full costs implications) and for political and/or publicity reasons. 

The Consultation proposes restricting the test for standing so that a more direct and tangible interest is required, albeit no actual damage or interference need to have occurred.  The Consultation does recognise that certain cases need to be approached differently, such as environmental issues where NGOs are guaranteed rights of standing under EU law.

5. Judicial review on the grounds of procedural defects

One of the grounds for bringing a judicial review raises where there has been a procedural irregularity or impropriety.  The Courts already apply the principle that where, despite a procedural error, there would have been no difference to the outcome, the remedy sought can be refused. However, at present this principle is only really addressed after the permission stage.  

The new proposals suggest that, where the defendant raises the argument in its acknowledgment of service, the ‘no difference’ argument applies, this should be considered at the permission stage, allowing for those claims to be dismissed at an earlier stage.  There is also a proposal to introduce a new statutory threshold to judge whether a case based on a procedural flaw should be dismissed. 

6. The Public Sector Equality Duty and judicial review

The Public Sector Equality Duty, introduced by the Equality Act 2010, requires public bodies to have due regard to the need to eliminate discrimination and encourage equality.  An alleged breach of this duty can be challenged through a judicial review.    A review of this obligation by an independent Steering Group has found that even where courts find there has been a failure to comply with the duty it often simply requires the body to retake the decision, which is often the same.  The Consultation seeks views about alternative mechanisms for enforcing the duty other than judicial review.

7. Financial Incentives

The proposals identify a need to ensure those involved in a judicial review application have a proportionate financial interest in the costs of the case to prevent repeated and unmeritorious claims being made.  Under the earlier reforms there will soon be a fee introduced for oral permission hearings, however the new proposals go further. Examples of the proposals put forward include: 

  • The costs of an oral permission hearing should be recoverable and an unsuccessful claimant should be ordered to pay the defendant’s reasonable costs of defending the application as a matter of course;
  • The availability of Protective Costs Orders (PCOs) should be reduced for claimants who have a private interest in the case regardless of whether there is a wider public interest;
  • The Court should consider who is funding the litigation when determining a PCO application and a cross cap protecting the defendant’s liability to costs should be ordered when making a PCO in favour of the Claimant;
  • There should be a rebuttable presumption that a third party who chooses to intervene in judicial review proceedings should bear its own costs regardless of outcome and should be responsible for any significant additional costs incurred as a result of issues it raises.

8. Leapfrog appeals

In very limited circumstances, cases can move directly from the High Court to the Supreme Court without an appeal to the Court of Appeal. 

The proposals acknowledge that there are a small number of significant cases where it is clear they will not stop at the Court of Appeal but will progress to the Supreme Court.  To avoid delay and wasted expense in these cases, the Government proposes to extend the current leapfrog system.  There are also proposals to extend the range of courts and tribunals in which a leapfrog appeal can be initiated, including from the Upper Tribunal (Lands Chamber).

It is perhaps unlikely that all of the proposals will be adopted by the Government, but whatever else, this latest consultation paper makes it clear that the Government is intent on pursuing a widespread and comprehensive reform of the judicial review system.

If the previous consultation is anything to go by, the current proposals are likely to elicit a significant number of responses from all parties involved in the judicial review process.   Those facing judicial review challenges will recognise the concern about the delays (and attendant cost) inherent in the current system –particularly in areas such as planning and procurement. They may well support those proposals which are aimed at speeding up the process by deterring applicants. 

Conversely these proposals are unlikely to be welcomed by campaign and pressure groups who may perceive this as the latest attack on legitimate judicial scrutiny of the exercise of public powers.

Whatever else we can expect the debate to continue. 

The consultation closes at midnight on 1 November 2013.

 

For further information please contact:

Alison Oldfield
Partner
Tel: +44 113 200 4660
alisonoldfield@eversheds.com 

 

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