Lord Dyson, the Master of the Rolls, has made it clear that he is “personally opposed” to changes in the costs rules for judicial review oral permission hearings.
The Ministry of Justice (MoJ) is pushing for the rules to be rewritten in a way that favours defendants as part of its programme of JR reforms, though the measure does not feature in the Criminal Justice and Courts Act 2015.
Minutes of last month’s Civil Procedure Rule Committee (CPRC) state: “The committee did not agree in principle with the proposal for a change to the costs provisions for oral permission hearing, which in their view raised an important access to justice issue.
“The Master of the Rolls noted that the great majority of consultation responses on this issue had not been favourable and added that he was personally opposed to the change.
“The committee considered it particularly unfair for a successful claimant to be prevented from recovering the costs of a contested permission hearing where that hearing had been instigated by the defendant raising a ‘no difference’ argument.”
Under the Act, defendants can argue that permission should be refused if the court is satisfied that it is highly likely that the outcome for the applicant would not have been substantially different had the conduct complained of never happened.
Under the existing regime, courts have a general discretion on costs where permission applications are refused on the papers and oral hearings are granted.
However, where an applicant is unsuccessful, it is normal practice for the courts to award the costs against them only of completing an acknowledgement of service and not of those attending the hearing.
In its September 2013 consultation on judicial review, the MoJ proposed that successful defendants should not generally have to pay their own costs for permission hearings.
The vast majority of respondents to the consultation were against the change – 121 against, compared to 23 in favour.
In a paper presented to the CPRC meeting, the MoJ said arguments in favour of change were that claimants tended to seek an oral renewal “irrespective of an application’s merits” and there should be “some financial implications” for those with weak cases.
Common reasons for opposing the change included that an oral permission hearing was for claimants to prove their cases, not for the defendants to disprove them, and so defendants should bear the costs risks if they chose to be represented.
The CPRC concluded that the MoJ should seek the “views and agreement of the lead judge of the Administrative Court” on the drafting of any new rules on the issue, “in particular with regard to how they would fit in with the existing procedures”.