Government to legislate for tougher costs rules in judicial review

Grayling: changes will bring balance to the judicial review system

The government is to introduce legislation that will substantially beef up the costs rules so as to discourage weak or frivolous judicial reviews (JRs), it announced yesterday.

Issuing its response to the consultation held last autumn – to which it received 325 responses – the Ministry of Justice (MoJ) put a “strong package of financial reforms”, heightening the costs risk to claimants and their lawyers, at the centre of achieving its objective of limiting the pursuit of weak claims.

This consists of:

  • Legal aid will only be available once permission has been granted, subject to enabling the Legal Aid Agency to pay in “meritorious” cases which conclude prior to the permission decision;
  • Changing the CPR so that the costs of an oral permission hearing should usually be recoverable by a successful defendant, rather than only in exceptional circumstances as now;
  • Setting out the framework for protective costs orders (PCOs) in primary legislation so that they are only available where there are “serious issues of the highest public interest in cases granted permission and which otherwise would not be able to be taken forward without a PCO”;
  • Introducing a presumption, where a PCO is granted, that the court will also include in the order a cross-cap on the defendant’s liability for the claimant’s costs;
  • Requiring judges making wasted costs orders to report the lawyers involved to their regulator (see full story here);
  • Primary legislation that introduces a presumption that interveners – other than those invited by the court to intervene – will bear their own costs and also those costs arising to the parties from their intervention; and
  • Primary legislation so that an applicant for JR must provide information on funding at the outset and requiring the courts to have regard to this information in order to consider making costs orders against non-parties.

The changes needing legislation will be included in the Criminal Justice and Courts Bill, which was introduced to Parliament yesterday.

On WCOs, the MoJ said the best way to improve their effectiveness was not to amend the existing test for making them, “but instead to strengthen the implications for the legal representative where one is made”.

The response said: “In many situations where a WCO is awarded, professional negligence will be at issue and, as many respondents pointed out, independent regulatory bodies should have a role in these situations…

“Whilst a WCO is a serious matter, there are currently no formal regulatory or contractual consequences for the legal representative who has acted improperly, unreasonably or negligently. The government intends to place a duty on the courts in legislation to consider notifying the relevant regulator and, where appropriate, the Legal Aid Agency, when a WCO is made. This duty will apply in respect of all civil cases, not only judicial reviews.”

Away from costs, the MoJ decided against changing the rules on standing to bring a JR, but will do so over procedural defects.

At the moment the court can refuse to grant permission or award a final remedy on the basis that it is “inevitable” that the complained-of failure would not have made a difference to the original outcome; the threshold will be brought down to “highly unlikely”.

The MoJ is also to create a planning court to deal with disputes over major developments, and widen the criteria to allow certain high-profile cases to leapfrog from the High Court to the Supreme Court.

Justice secretary Chris Grayling said: “Judicial review must continue its role as a crucial check on the powers that be – but we cannot allow meritless cases to be a brake on economic growth. That would be bad for the economy, the taxpayer and the job-seeker, and bad for confidence in justice.

“These changes will bring balance to the judicial review system, so justice is done but unmerited, costly and time-wasting applications no longer stifle progress.”

Shadow justice secretary Sadiq Khan responded that the reforms will “do nothing to improve justice”.

He said: “Instead, it’s about protecting the government and their big corporate friends’ bad decisions from being challenged. It shows, once again, whose side they are on.

“Judicial review is a crucial constitutional check and balance on those in power and should not be messed around with for politically motivated reasons. These changes are an attack not only on the best campaigning organisations and individual citizens’ rights, but also on the rule of law and good governance.”


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