Legal update ––––– March 2014
Commercial Litigation
Reforming the Judicial Review process - will it be in public
interest?
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In our last bulletin (September 2013), we
outlined the further reforms to the Judicial
Review process proposed by the Government
in the consultation paper “Judicial Review –
1
Proposals for further reform” . The
Government’s response has recently been
published, along with the Criminal Justice and
2
Courts Bill (“the Bill”, which is anticipated to
receive Royal Assent later this year). The key
reforms are summarised below.
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Initial views about the potential impact of these (and the
earlier) reforms are mixed; from the perspective of
delivering new developments and major infrastructure
projects, the reforms will be welcome if they succeed in
driving down the number of weak Judicial Review
applications designed to stall progress. However,
Judicial Review has developed into an effective and
accessible check and balance against the abuse of
public power. There is a wider concern that these
reforms could result in the Court having fewer
opportunities to scrutinise cases in the wider public
interest.
Planning challenges
A key theme running through the programme of reforms
has been to ensure that challenges to planning and
major infrastructure projects can be determined more
swiftly. Recent improvements have been made, via a
Planning Fast-Track within the Administrative Court. In
the consultation paper, the Government also considered
whether to create a Specialist Planning Chamber in the
Upper Tribunal, with specialist judges in the Lands
Tribunal hearing planning cases.
The Government has decided that it will create a new
Planning Court, which is likely to be in place during the
summer of 2014. However, this will remain within the
High Court, with a separate case list under the
supervision of a specialist planning judge. Time limits
for case progression are also likely to be introduced
1
2
Available from www.justice.gov.uk
See Part 4 of the Criminal Justice and Courts Bill
through the Civil Procedure Rules (by which litigation is
generally conducted). This is very likely to be a positive
development, as it has often been a criticism of the
current system that it could not be guaranteed that the
judge hearing a planning challenge would have the
requisite knowledge and experience.
In addition, s.57 of the Bill introduces a requirement for
a claimant to obtain leave to bring a statutory appeal
pursuant to s.288 Town and Country Planning Act 1990
(as amended). Currently, there is no filter for
unmeritorious s.288 appeals at an early stage of the
process, so this reform is likely to assist in further
reducing the Court’s workload and speeding up
hearings.
Standing – who can bring a judicial review
challenge?
Currently, a claimant to judicial review proceedings
must demonstrate that they have “a sufficient interest in
the matter to which the application relates”. Standing
will be considered at both the permission stage and at
the substantive hearing. Whether a claimant has a
sufficient interest can range from a direct legal or
economic interest to an indirect interest on a serious
issue of public importance. Concerned that the courts
have adopted an increasingly expansive approach to
standing, and that this has allowed those with only a
theoretical or political purpose the ability to cause delay
by challenging a decision or policy in which they have
no direct interest in the outcome, the Government
consulted on whether it should implement a narrower
test of standing.
In light of the opposition received in response to this
proposal, and given the relatively few public interest
cases in which the claimant had no direct interest, the
Government has refrained from restricting the test of
standing to only those with a direct interest. Instead, it
seeks to achieve its policy aim of cutting down and
deterring unmeritorious claims through a package of
financial reforms which are outlined below.
Commercial Litigation
Permission – is there a likelihood of a
substantially different outcome?
As we noted previously, the Government has already
removed the right for a claimant to request such a
hearing in circumstances where the Court has already
decided (on paper) that the application is totally without
merit.
In addition, pursuant to s.50 of the Bill, the Court will
also be required to consider at the permission stage
whether, even if there has been unlawfulness on the
part of the public body, “it appears to the Court to be
highly likely that the outcome for the applicant would not
have been substantially different if the conduct
complained of had not occurred”. If the alleged error
would not have made a substantial difference, the Court
must refuse permission.
Until now, the “substantially different outcome” test has
only been of relevance when the Court is deciding
whether to exercise its discretion in favour of granting a
remedy. This reform has come in for considerable
criticism because the Court will be asked to decide this
issue at a much earlier stage, before the public body
concerned is required to file its evidence and the
claimant has had the opportunity to argue, with the
benefit of that evidence, that the alleged error would
have made a substantial difference. Meritorious claims
may not proceed as a consequence, to the detriment of
the development of public law.
Legal update March 2014
financial risk “as their action places pressure on the
taxpayer-funded courts and potentially delays important
projects and policies”. In short, this package is intended
to deter challenges from those who want to bring
challenges to cause delay and for the publicity of doing
so.
The reforms include:
•
Requiring claimants to disclose, when they
apply for Judicial Review, “any information about the
financing of the application” which includes the source,
nature and extent of the available financial resources
available to the claimants in order to meet any costs
liabilities. In the case of a body corporate, such
information should relate to the members of that body (a
move designed to stop individuals seeking to avoid
such liability by establishing a limited company to act as
the claimant in the proceedings). Such information is to
be used by the Court when deciding by whom and to
what extent the costs of the Judicial Review
proceedings are to be paid. Such a costs liability can be
extended to someone who is not a party to the
proceedings.
•
Providing that third party intervenors (i.e.
example Liberty) cannot recover their costs from the
parties to the Judicial Review proceedings and further,
that intervenors can be ordered to pay the costs of
those parties, where such costs arise as a consequence
of their intervention.
•
Codifying the Court’s powers to grant
Protective Costs Orders which may only be made in
the event that the Court is satisfied that the proceedings
are “public interest proceedings”, in the absence of a
cap on costs, the claimant would withdraw the
proceedings and it would be reasonable for them to do
so. As to the “public interest” threshold, the proceedings
must involve a matter of general public importance
which needs to be resolved and the Court being
satisfied that Judicial Review proceedings are the most
appropriate way of doing so. The Court will also need to
consider how many people are affected by the subjectmatter of the challenge and how significant that effect
will be, as well as whether it involves a point of law of
general public importance.
Leapfrog appeals to the Supreme Court
Source: iStock photo
Financial "incentives"
Sections 51-56 of the Bill comprise a package of
reforms which are intended to ensure that those
bringing Judicial Review proceedings, particularly where
they have no direct interest and purport to do so in the
public interest, have a “more appropriate” share of the
The final reform within the Bill that could have an impact
on the Judicial Review process concerns the Court’s
power to direct that an appeal from the High Court
leapfrogs the Court of Appeal and goes directly to the
Supreme Court. S.32 of the Bill provides that in order
for this to happen, the subject-matter of the appeal
must:
•
Involve a point of law of general public
importance;
Commercial Litigation
•
Relate to a matter of national importance;
•
Be capable of having a result which is so
significant, a hearing by the Supreme Court is justified;
and
•
The benefit of the Supreme Court giving
the matter earlier consideration outweighs the benefits
of consideration by the Court of Appeal.
This reform is clearly designed to cut down the period of
time it takes for an appeal on a matter of significant
public interest (i.e. the HS2 project) to get to the
Supreme Court and highlights the Government’s desire
to ensure that major infrastructure projects are not
unduly delayed by Judicial Review challenges.
Conclusions
There is little doubt that the Judicial Review process
required reform, given the time it could take for a
challenge to reach a substantive hearing, particularly if
the claimant had needed to obtain the Court’s
permission to proceed at an oral hearing. Much has
been achieved by immigration cases being transferred
to the Upper Tribunal and through the Planning Fast
Track. The more recent reforms for further streamlining
planning cases will be a welcome development.
Only time will tell how the other reforms, particularly the
financial “incentives” will translate in practice and
whether such reforms will come at a wider cost, by
deterring individuals from bringing genuine and
meritorious public interest cases.
March 2014 © Trowers & Hamlins
For more information please contact
Lucy James
Partner
t +44 (0)20 7423 8776
e [email protected]
Legal update March 2014