Ministry of Justice (MoJ) plans to require judicial review claimants to share details of how their action is being funded with the defendant and other parties is “a fundamentally unprincipled breach of the principle of equality of arms”, the Civil Justice Council (CJC) has claimed.
Instead, costs management should apply to judicial review claims, the advisory body said.
Earlier in the summer the MoJ announced that it would require claimants to disclose to the court the identity of any financial contributor who gave more than £3,000. It then issued a further short consultation on serving this information on defendants and interested parties at the same time as the claim form.
The MoJ had originally said the information would not be made publicly available or provided to the defendant but changed its mind on the grounds that allowing this would offer equality of arms and enable defendant and other parties to make fully informed representations to the court about costs at any point in the proceedings. Members of the public would have to apply to the court for permission to obtain a document.
In its response to the consultation, the CJC was strongly opposed to the move.
It said: “Firstly, requiring an applicant to provide information on their funding to defendants and other parties absent a requirement that defendants and other parties provide details of their funding arrangements to applicants is a fundamentally unprincipled breach of the principle of equality of arms.
“Secondly, the proper means to enable a defendant to manage their litigation caseload and costs liability effectively is through the application of the present costs budgeting and management provisions in the CPR to judicial review proceedings.
“The use of cost budgeting would require both applicants and defendants, and where appropriate third parties, to exchange details concerning their expected litigation expenses, thus: (i) properly promoting equality of arms; (ii) ensuring that the position in judicial review proceedings concerning the provision of costs information was consistent with that taken in part 7 multitrack proceedings.”
The CJC did, however, agree that members of the public should have to apply to the court for access to the funding information.