Wed, 05 Feb 2014
Following recent announcements in the press, including a front page headline in The Times this week, the Government published the Criminal Justice and Courts Bill on Wednesday, 5 February 2014. Part 4 of the Bill contains a number of important changes to be introduced which seek, in the words of the Lord Chancellor, to prevent judicial review from being a “brake on growth”. However, whilst it has been reported in the national press that the proposals mean that only individuals or groups with a financial interest in a case will be able to bring a challenge, this is inaccurate. The Government originally proposed narrowing the test for standing so as to restrict the availability of judicial review to those with a “direct interest” but that proposal has now been dropped.
The aim of reducing judicial review claims is nevertheless still being pursued: The financial measures in the Bill are intended to deter would be claimants by increasing the financial risks on those seeking judicial review. In summary, those measures include the following:
• An amendment to s.31 of the Senior Courts Act 1981, requiring applicants for judicial review to reveal at the outset how their claim is being funded and the resources available from others behind the scenes, including, in the case of companies with insufficient resources, their members;
• A requirement on the Court to consider making orders for costs against third parties who are providing financial support to claimants or who are likely to be able to do so;
• A presumption that third part interveners in judicial review claims be liable for their own costs and the costs of the other parties that arise from their intervention;
• Restriction on the Court’s ability to make protective costs orders (referred to as “cost capping” orders) to more narrowly defined “public interest cases” and only where a claimant would otherwise withdraw the claim and would be acting reasonably in doing so.
This latter measure relating to “cost capping” would prevent the Court from making a protective costs order (“PCO” – that is an order limiting a claimant’s exposure to liability to pay the other side’s costs if unsuccessful) until after permission to seek judicial review has been granted. The Court would be required to have regard to the financial information provided at the outset and would only be able to make a PCO in more narrowly defined “public interest cases” and only where a claimant would otherwise withdraw the claim and would be acting reasonably in doing so. In deciding whether a case is a “public interest” case, regard is to be had to the number of people likely to be affected by the outcome, the significance of that effect and whether a point of law of general public importance is involved. Any PCO that is made would be required to be on reciprocal terms, in other words a defendant would also be protected from an adverse costs claim from the claimant, should the claim succeed.
Of course ostensibly these proposals cut across the Aarhus Convention and the new rules in the Civil Procedure Rules relating to Aarhus Convention claims. Under CPR 45.43, in Aarhus Convention claims, a claimant’s costs are capped at £5,000 where the claimant is an individual and at £10,000 in other cases, and at £35,000 for the defendant and there is no narrow public interest test. Although at first sight the draft provisions in the Bill apply to all judicial review proceedings and so would conflict with the Aarhus rules, clause 56 allows the Lord Chancellor to introduce Regulations excluding the application of those provisions to those cases which “in the opinion of the Lord Chancellor have as their subject an issue relating entirely or partly to the environment.” There is clearly scope for such Regulations to define such cases more narrowly than at present and it is clear from the Government’s response to the Consultation on its reforms that it is awaiting a decision from the European Court of Justice before deciding the extent to which (if at all) it can further review and potentially restrict PCOs in environmental cases. To date, the High Court has applied a fairly broad definition of what constitutes an environmental case or an Aarhus Convention claim. In Sarah Louise Venn v. Secretary of State  EWHC 3546 (Admin), a claim concerning the application of policy protecting gardens from development was held to be an Aarhus Convention claim. Also, under the current rules (CPR 45.44) there are adverse cost consequences that discourage a defendant from challenging a claimant’s assertion that a claim falls under the Aarhus Convention. There is no current proposal to change this but it is likely to be subject to ongoing review.
In addition to the financial measures set out in the Bill, the Government intends to amend the Civil Procedure Rules to enable Courts to make costs awards against unsuccessful claimants at permission application renewal hearings on a routine basis rather than only in exceptional circumstances.1 This is obviously intended to discourage unsuccessful applicants from renewing their application for permission to seek judicial review at an oral hearing.
Other, non-financial measures set out include, under Clause 57, a new permission stage for planning statutory reviews under s.288, including challenges to Inspector and Secretary of State appeal decisions.
There is also proposed a lowering of the threshold where a Court can refuse judicial review relief on the basis that correcting the error complained of would be “highly unlikely” to make any difference to the substantive decision of the body being reviewed. Currently the effect of rules developed through case law is that Courts may exercise their discretion to refuse relief in cases where it considers it “inevitable” that the result would be the same if reconsidered on the correct basis by the decision making body. Clause 50 inserts amendments to section 31 of the Senior Courts Act 1981 firstly lowering that threshold to “highly unlikely,” secondly removing discretion and requiring Courts to refuse relief where there is a “highly unlikely” finding and, thirdly, encouraging this issue to be considered at the permission stage rather than at the end of the substantive hearing.
Finally, the Government has dropped its proposal to transfer planning judicial review cases to a specialist planning chamber of the Upper Tribunal. Instead, in response to representations made by the Bar and senior Judiciary, there will still be a new Planning Court but it will operate from within the High Court and will be a separate list under the supervision of a specialist Judge. This will be implemented by amendments to the Civil Procedure Rules, together with new time limits for case progression.
Whilst none of these proposed changes are yet implemented, and most will not be until the new Bill has progressed through parliament, it is worth remembering that these changes come on top of the other recent changes to judicial review in the planning field which are now in force. They were as follows:
• Introduction of a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down;
• Removal of the right for applicants to seek a hearing in person if their initial written application has been ruled as “totally without merit” (the only recourse is a paper application to the Court of Appeal);
• Halving of the time limit for applying for a judicial review of a planning decision from three months to six weeks (but not to apply to challenges to planning policy statements);
• Reduction of the time limit for applying for a judicial review of a procurement decision from three months to four weeks.
In addition the Government has recently lessened the requirements for design and access statements and removed the requirement to set out summary reasons for approval on planning decision notices, the latter measure certainly likely to lessen the scope of those aggrieved by decisions to ascertain whether they are properly challengeable.
It is as yet unclear what impact these recent changes have had or will have on the numbers of challenges brought, their success rates and the ability to hold decision making bodies properly to account. What is clear is that the Government is not prepared to wait and see the effect of those measures before seeking to put into effect yet more.
A PDF version of the article can be downloaded using the link below.