The Civil Justice Council (CJC) has made it clear that it remains “conceptually” opposed to the new financial information rules for judicial review applicants, despite their passage into law in the Criminal Justice and Courts Act 2015.
Responding to a Ministry of Justice (MoJ) consultation on implementing the new measures, the CJC said that “in most areas of litigation” the need for financial information was left to the discretion of the courts.
The CJC said it was “difficult to see how a system of making exceptions” to the rules could be administered.
In the case of charities, which the MoJ suggested could benefit from an exception, the CJC said that “many charities bringing judicial reviews have in-house legal resources, in stark contrast to individuals who will not have any access to professional legal advice and representation”.
The council said that, on the basis that the Act expressly provided for a threshold for disclosing details of contributions from third parties, a single financial limit was “the most sensible approach”.
The CJC went on: “The paper makes clear that the available data suggests that costs for applicants in judicial review proceedings are in the region of £11-22,000.
“Given this, the suggestion of a £1,500 threshold has a policy objective of identifying relatively small contributions from third parties.
“How useful that level of data is felt to be is a matter for the government, and how much conclusion can be drawn on ‘control’ of a claim from a contribution of that level from a third party is open to conjecture.
“A higher threshold would be a clearer indicator of committed third party support for an application, say £2,500.”
The CJC agreed with the MoJ that judicial review applicants should provide a “more detailed picture” of their finances, if they wanted to be protected by cost-capping.
“The cost-capping principle is designed to allow meritorious and public interest applications to be brought by parties who would otherwise be deterred by the potential heavy cost liabilities.
“It is therefore reasonable that, if a party is seeking cost-capping order protection, they need to provide a degree of financial information showing that they do not have substantial resources.”
The CJC agreed that applicants should not need to provide supporting documents, to avoid the courts becoming “deluged with papers that are not germane to the judicial review”.
On the MoJ’s impact assessment, the CJC concluded that the financial information measures would “affect a relatively small number” of applications.
“The CJC always has concerns about proposals that add to the costs of litigation and the administrative burden on parties and the court administration, and the effects of the new system should be reviewed post-implementation.”