Ministry of Justice doubles financial threshold for identifying judicial review backers

MoJ; £3,000 cap

MoJ; £3,000 cap

The government has doubled the threshold above which third-party contributors to judicial reviews (JRs) will have to be identified.

It is also seeking further views on the extent to which other parties and the public should have access to financial information provided by applicants under sections 88 to 90 of the Criminal Justice and Courts Act 2015.

On Friday the Ministry of Justice (MoJ) published the outcome of the consultation launched a year ago on implementing the provisions of the 2015 Act, and said it was planning to push ahead with what it had proposed.

The rules will be drafted by the Civil Procedure Rule Committee and Tribunal Procedure Committee. Under them, claimants will have to provide a declaration about the funding of their case on an application for permission to bring a judicial review.

If self-funding or legally aided, they will not need to provide any more information, but where they are receiving funding from other sources, they will have to provide the court with the name, address and amount being contributed from anyone giving more than £3,000.

The MoJ said it was concerned that the original £1,500 threshold was “likely to see the court provided with unacceptably large amounts of unnecessary material”.

It continued: “Indeed, [the government] is persuaded by the weight of expert judicial experience and opinion that a higher than suggested threshold will provide the most appropriate balance and, taking into account the available data, proposes a threshold of £3,000.

“In the government’s view, that figure will capture many situations in which there are relationships of control without being unduly onerous on claimants or the court. Additionally, it is of the view that this represents a significant amount of money to most people – and on that basis it will capture many cases where there is an expectation of controlling the litigation – while eliminating relatively minor contributions and avoiding overloading the court with information it does not require to make a decision.

“In the government’s view, this amount is sufficiently significant for most people that there will be an expectation in many cases that those contributing in excess of this amount will be involved in the running of the claim. Therefore, it is right that the court be made aware of people making contributions of this scale and is able, if it deems necessary, to make further enquiries.

“The government will, however, keep this under keen review and may seek changes if it appears that the threshold is not working appropriately.”

If the claimant is a corporate body that is unable to show that it has or is likely to have sufficient funds, it will need to provide the name and address either of a person who it anticipates is able to provide information about its members and their ability to provide financial support, or, if there is no such person, one of its officers.

The government said that claimant would not need to provide their estimate of the total costs to the court.

The 2015 Act also introduces costs-capping orders for JRs – the enabling statutory instrument was laid before Parliament last week – and the MoJ said applicants for an order would have to provide a “more detailed picture” of their financial circumstances, including a breakdown of their significant assets, liabilities, income and expenditure. This would also include funding from third parties.

The MoJ initially suggested that financial information provided under the Act would not be made publicly available or provided to the defendant, but has shifted position in favour of claimants serving it on defendants and interested parties at the same time as the claim form. This might be subject to the court’s discretion to direct that some information is not served.

It said this would offer equality of arms and allow those 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.

The MoJ is seeking views on this by 18 August.

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