Martin Partington: Spotlight on the Justice System

Despite considerable hostility from lawyers, the Coalition Government did enact important changes to the rules relating to Judicial review. These are contained in Part 4 of the Criminal Justice and Courts Act 2015. Suggestions that, had the outcome of the General Election been different, some of these changes might have been repealed, are obviously no longer on the table.

It should be remembered that important structural decisions had been taken in relation to Judicial Review well before these latest provisions were enacted. In particular,

1. Immigration cases had been largely removed from the Administrative Court and transferred to the Upper Tribunal.
2. Planning cases were to be dealt with by a new specialist Planning Court.

The provisions in the latest Act are arguably more technical in character. The actual impact of the changes will not emerge until they have been in operation for some time.

The changes, in outline, are as follows:

Section 84.  Limiting the discretion of the court

In judicial review cases the courts have always exercised discretion over whether or not to provide a remedy (“relief”). In practice, the courts have in the exercise of that discretion refused to provide relief where there would have inevitably been no difference to the outcome of the decision over which judicial review was sought, even if the reason which led to the bringing of a judicial review had not occurred.

Section 84 takes this further by providing that  relief must not to be granted and permission to seek that relief must not to be granted where the court considers the conduct complained about would be highly likely not to have resulted in a substantially different outcome for the applicant.

The Explanatory Notes to the Act offer the following example:

A public authority might fail to notify a person of the existence of a consultation where they should have, and that person does not provide a response where they otherwise might have. If that person’s likely arguments had been raised by others, and the public authority had taken a decision properly in the light of those arguments, then the court might conclude that the failure [to notify the particular person seeking JR] was highly unlikely to have affected the outcome.

Thus the historic discretion of the court is – under the new rules – has been limited by these stricter requirements.

However, the section gives back some discretion to the  court in that where the court considers that it is appropriate to grant relief or permission for reasons of exceptional public interest it may do so. If the court relies on this exception, it must certify that it has done so. These rules apply equally to the Upper Tribunal.

The unknown factor at the moment is the extent to which these new provisions will themselves generate litigation, in particular on the question of what is or is not ‘exceptional public interest’.

Sections 85 and 86. More financial information about funding of cases and the award of costs

Before these new provisions were enacted the position was as follows. Section 51 of the Senior Courts Act 1981 and section 29 of the Tribunals, Courts and Enforcement Act 2007, gave the High Court, the Court of Appeal and the Upper Tribunal  wide powers in respect of awarding costs. This extended to the power to award costs against any person who is not a party to a case. This might include a person who, although not a formal party to a claim, provides financial backing to the claimant and is seeking to drive the litigation for their own purposes. Similarly, where a “shell company” is created to bring the judicial review, whilst the directors of the company are not parties, they may be both funding and driving the litigation so it may be appropriate to make a costs award against them. However, there was no general requirement for an applicant to reveal the source of the funding he or she is receiving for the judicial review proceedings which may mean that it is difficult for the court to identify against whom costs orders should be made.

Section 85 stipulates that where an applicant applies to the High Court or the Upper Tribunal for permission to proceed with a judicial review under the law of England and Wales, the High Court or Upper Tribunal cannot grant permission unless the applicant provides specified information about the financing of the judicial review.The specified information requirements are set out in the Civil Procedure Rules Part 54.

Section 86 provides that when making costs orders under section 51 of the Senior Courts Act 1981 and section 29 of the Tribunals, Courts and Enforcement Act 2007 the High Court, the Court of Appeal and Upper Tribunal should have regard to the information provided by the applicant and should consider making costs orders against those who are not a party to the judicial review.

Section 87. Interveners and the payment of costs

Before section 87 was enacted, under the Civil Procedure Rules any person who is interested in the issues being considered in a judicial review case can seek permission from the court to intervene in the case, usually by filing evidence or making representations. At the end of the judicial review case the court considers who should bear the costs that arise from any intervention.

The courts have powers under section 51 of the Senior Courts Act 1981 to make an award of costs against a person who is not a party to a claim such as an intervener.

In making this decision, section 87 establishes two presumptions. (These apply only to cases in the Administrative Court or the Court of Appeal – not the Upper Tribunal):

• first that those who apply to intervene in a judicial review case will have to pay their own costs and
• secondly that, on the application of a party, if one or more of four specified conditions has been met, the intervener must pay any costs which their intervention, has caused that party to incur.

The four specified conditions are:

a) the intervener has acted, in substance, as the sole or principal party – for example, where the intervener drives the judicial review taking on the proper role of one of the parties;
b) the intervener’s evidence and representations to the court, taken as a whole, have not been of significant assistance to the court – for example, where some of the points the intervener makes are helpful but on the whole the evidence and representations are not helpful;
c) a significant part of the intervener’s evidence and representations relates to matters that it is not necessary for the court to consider in order to determine the issues in the case – for example, where the intervener uses a significant portion of the time in court to make arguments not related to the issues in the case; and
d) the intervener has behaved unreasonably – for example, where the intervener makes overlong, unnecessary submissions which extend the time taken for the hearing.

Neither presumption  applies where the court considers there to be exceptional circumstances which would make it inappropriate.

It should be noted that where the court invites a person or body to intervene in a JR case, these presumptive rules do not apply; the new  rules only apply where the intervener has applied to intervene in the case.

These provisions were of great concern to a number of NGOs who frequently assist the court on questions that arise in key JR cases. At present, it seems as though agencies with relevant expertise who can add value to JR proceedings should escape the costs sanctions. But again this is a matter that can only be assessed in the light of experience.

Sections 88 – 90. Limiting the use of ‘costs-capping’ orders

A costs capping order is an order of the court which limits the costs which a party may recover from another party at the conclusion of the case. Where such an order exists, it has the effect of mitigating the impact of the normal rule that the loser in litigation pays the winner’s costs.

In judicial review cases, a particular sort of costs capping order, known as a protective costs order, was developed by the courts. Here, costs would typically by capped on an “asymmetric” basis. Thus,  the amount recoverable by a successful defendant from the applicant would be capped at a lower level than the amount recoverable by a successful applicant from the defendant (which may not be capped at all). If such an order has been made and the applicant is unsuccessful in the proceedings to which the order applies, the applicant will only be liable to pay the successful defendant’s costs up to the amount specified in the order, and the defendant will have to cover any balance of its legal costs itself.

The effect of these rules was to potentially increase the cost to public bodies who were defending judicial review proceedings.

When making an order capping the applicant’s costs liability, the court may also include a “cross-cap”, limiting (generally at an amount rather higher than the cap on the applicant’s liability) the amount of costs the defendant would be liable to pay the claimant if the claim succeeds. This meant that an unsuccessful defendant would only be liable to pay the successful applicant’s costs up to the amount specified in the order and the applicant would cover any remaining costs he or she had incurred. But the potential cost burden on the defendant would be greater than the potential cost burden on the applicant.

As noted above, protective costs orders were developed by the courts. The principles governing when and on what terms they should be made were re-stated by the Court of Appeal in the case of R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192. The Corner House principles provided for protective costs orders to be for exceptional circumstances in cases concerning issues of public importance. However, over time their use has widened.

Sections 88 – 90 replace the judge-made rules with a statutory code.

The heart of section 88 is in subsections 6 – 8. These provide:

1 The court may make a costs capping order only if it is satisfied that—

• the proceedings are public interest proceedings,
• in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings, and
• it would be reasonable for the applicant for judicial review to do so.

2 The proceedings are “public interest proceedings” only if—

• an issue that is the subject of the proceedings is of general public importance,
• the public interest requires the issue to be resolved, and
• the proceedings are likely to provide an appropriate means of resolving it.

3 The matters to which the court must have regard when determining whether proceedings are public interest proceedings include—

• the number of people likely to be directly affected if relief is granted to the applicant for judicial review,
• how significant the effect on those people is likely to be, and
• whether the proceedings involve consideration of a point of law of general public importance.

Section 89 sets out the factors the court must consider when making a costs capping order. These are:

• the financial resources of the parties to the proceedings, including the financial resources of any person who provides, or may provide, financial support to the parties;
• the extent to which the applicant for the order is likely to benefit if relief is granted to the applicant for judicial review;
• the extent to which any person who has provided, or may provide, the applicant with financial support is likely to benefit if relief is granted to the applicant for judicial review;
• whether legal representatives for the applicant for the order are acting free of charge;
• whether the applicant for the order is an appropriate person to represent the interests of other persons or the public interest generally.

The section also provides that if an order is made capping the costs which the applicant is liable to pay in the event that he loses, the court must also make an order capping the costs the defendant is liable to pay if he loses.

Section 90 enables environmental cases to be excluded from the codified regime provided for in these sections as such cases are governed by a separate regime arising from the Aarhus Convention and the Public Participation Directive.

Sections 91-92 Amendments to the rules relating to planning decisions

These sections, with Schedule 16 of the Act make detailed changes to the ways in which challenges to planning decisions may be made and the time periods within which such challenges must be made.