The Lord Chief Justice has suggested that the new costs rules on interventions in judicial reviews should be looked at again.
Speaking to the justice select committee yesterday, Lord Thomas said although he believed the reforms had worked “on the whole”, the position of interveners was “one area” he was concerned about.
“I think the written brief or short oral submission in a case from these public-spirited bodies, often where they do it for nothing, is extremely helpful, but they do risk being landed for costs and so people are much more cautious, and I do think that’s an area where it might be desirable for people to look at this again.”
Under the Criminal Justice and Courts Act 2015, courts are required to make costs orders against interveners in judicial reviews if certain conditions are met, to cover the legal costs incurred by parties responding to their interventions.
The move was opposed by the House of Lords, which wanted judges to retain greater discretion, but passed by the House of Commons.
Responding to questions from MPs on his annual report, the LCJ said he did not believe “people who have real cases” had been deterred by the judicial review reforms.
In a session in which he also said he expected the incremental growth in use of fixed fees, rather than a ‘big bang’, Lord Thomas told the select committee that the Court of Appeal had to cope with a “huge increase” in the volume of its business, without any more judges.
He said the judiciary was examining the use of two-judge courts, rather than the current three. “It’s something we used to do. We’ve stopped doing it. We need to look at it.”
Lord Thomas described himself as a “very firm advocate” of word-limited submissions, which he said was already the rule for the US Supreme Court. “I’m very keen on this. Most people, if they’re asked to say something concisely, say it better.”
The LCJ added that tax changes to judicial pensions introduced by the government last summer were a “really serious problem” and had a “colossal” impact on the amount of money judges received on retirement. He added that this was having an “adverse effect” on High Court recruitment.