Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘administrative justice

Fees in immigration and asylum appeals

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In September 2016 I noted there the decision of the Government to introduce massive increases in the fees charged for bringing appeals to the First Tier Immigration and Asylum Chamber. They were introduced in October 2016.

On 26 November 2016, in a remarkable change of heart, the Government announced that the October increases would be scrapped and that the fee levels would revert to those in place before their introduction.

It should not be thought that the issue has entirely gone away. The Minister’s statement repeats the point that, in the Government’s view, the cost of providing court and tribunal should be broadly neutral, and that those who use them should pay more. Officials will therefore be working on new proposals, which will be set out in due course.

I think that two key questions remain unanswered:

1 Is the idea of making courts and tribunals self-financing the best basis for providing this service, particularly where what is being appealed against are decisions taken by civil servants working within the government? Is there not a public interest element – which should be funded in other ways, not by the individual – in ensuring that decisions taken by officials are right?

2 If fees are set at such a level that cases are simply not brought to the tribunal, does this not make the whole exercise self-defeating, in that no money comes into the system? In addition, if the flow of cases dries up, it is hard to argue that the impact of the fees has not interfered with access to justice.

I do hope that the nest consultation paper deals in a rather more nuanced way with these issues of principle, rather than just focusing on the narrow question of cash.

For the Minister’s statement, go to https://www.gov.uk/government/speeches/courts-and-tribunals-update

Written by lwtmp

November 26, 2016 at 10:31 am

Third Party Interventions

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In a number of key cases taken to the Supreme Court and th Court of Appeal, the legal arguments presented to the courts have been supplemented by ‘Third Party interventions’ in which submissions are made by organisations who are not directly involved in the specific case, but who have considerable expertise in the area of law the subject of analysis in the courts.

One of the consequences of the reforms to the procedures for judicial review, introduced in 2015, was that the rules on the costs implications for making such interventions were changed – with a view to trying to reduce their number.

During Parliamentary debate, it was acknowledged that there would be cases where the courts really would be assisted by additional expert submissions. In such cases, it was argued that the bodies making those submissions should not be penalised in costs.

The human rights group, JUSTICE, who have successfully intervened in many key human rights cases have just published a guide to the new law To assist the Court: Third Party Interventions in the Public Interest. This sets out the steps that need to be taken to ensure that costs penalties will not be imposed.

The guide is available for download, free, from:http://justice.org.uk/our-work/third-party-interventions/

Written by lwtmp

June 24, 2016 at 2:46 pm

Proposed new fees for immigration and asylum cases

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On 21 April 2016, the Government published a consultation paper proposing new fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). Following on huge rises in court fees for civil and family disputes, as well as huge increases in the fees charged in employment cases, the spotlight now falls on immigration and asylum cases.

At the heart of the government’s case for new charges is the statement:

The courts and tribunals service cost £1.8 billion in 2014-15, but only £700 million was received in income. This leaves a net cost to the taxpayer of around £1.1bn in 1 year alone.

This begs an important question: is it good policy for the justice system that its costs are met only by those who use the system, as opposed to being a collective responsibility which society as a whole should shoulder?

Whatever your answer to this question, you may be surprised at the level of fees which are now being proposed by the Government.

As the Minister stated when launching the Consultation:

We have previously consulted on plans to raise fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) in order to recover around 25% of the £84 million annual costs of that Chamber. Having re-assessed MOJ’s financial position following the Spending Review, we need to go much further.

The new consultation proposes increasing fees in those immigration and asylum proceedings where a fee is payable so that the fee meets the costs of those proceedings in full. (Emphasis added.)

The consequence of this policy is that it is proposed:

  1. To increase fees in the First-tier Tribunal from £80 to £490 for an application for a decision on the papers;
  2. To increase fees in the First-tier Tribunal from £140 to £800 for an application for an oral hearing.
  3. To introduce a new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal.

The Government argues that the same principles should apply to appeals to the Upper Tribunal (Immigration and Asylum Chamber) so the consultation also seeks views on introducing fees, set at full cost recovery levels, for these proceedings.

The consultation proposes:

  1. a fee of £350 for an application to the Upper Tribunal for permission to appeal, where permission has been refused by the First-tier Tribunal;
  2. a fee of £510 for an appeal hearing where permission is granted.

The Government concedes that some applicants will face difficulties in paying these fees, so to make sure that the burden of funding the system is shared as fairly as possible it will continue to exempt from fees those in particularly vulnerable positions. This includes those who qualify for legal aid or asylum support; those who are appealing against a decision to deprive them of their citizenship; and those children bringing appeals to the tribunal who are being supported by a local authority. The Government will also extend our exemptions to protect children being housed by the local authority and the parents of children receiving local authority support. In addition, it is consulting on further extensions to the exemptions scheme in this consultation to make sure the most vulnerable are protected.

The Government claims that these proposals will raise around an additional £37 million a year.

There are at least two fundamental questions that these proposals raise.

First, as mentioned above, is the policy of full cost recovery the right one, particularly where it is decisions of the state that are being challenged. The now defunct Administrative Justice and Tribunals Council sought to establish some principles in relation the question of who should bear these cost – which included the principle that, at least to a degree the Government department that made a decision which was overturned should pay part of the cost of the appeal.

Second, the whole of the Consultation Paper is based on assumption that the introduction of these fees will have no significant impact on the numbers of cases going through the tribunal system. If, however, the impact is similar to what has happened in employment cases, there will be a significant fall in appeal numbers, which no doubt the Government would like to see but which will prevent the Ministry of Justice achieving is financial targets.

Details of the government’s proposals are set out in the consultation can be found at https://consult.justice.gov.uk/digital-communications/first-tier-tribunal-and-upper-tribunal-fees.

The consultation runs until 3 June 2016.

Written by lwtmp

May 16, 2016 at 12:23 pm

Decision making and mandatory reconsideration: response to SSAC consultation

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UKAJI

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The Social Security Advisory Committee (SSAC) is currently seeking evidence on decision making and mandatory reconsideration before appeals of decisions by the Department for Work and Pensions (DWP) and HM Revenue and Customs (HMRC). The consultation is available here. The deadline for responses is 15 March 2016. Here, two members of UKAJI’s team identify key principles to guide internal review policy and suggest what research is needed into this important area of administrative decision making.

by Professor Tom Mullen and Professor Robert Thomas

We are both law professors with an interest in administrative justice. We respond on behalf of the United Kingdom Administrative Justice Institute (UKAJI). UKAJI is a network of people working with empirical research about administrative justice. This includes researchers from several different academic disciplines (including experienced academics running large projects, early career researchers and PhD candidates) and users of research (who include officials, practitioners, judges, ombudsmen…

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Written by lwtmp

April 25, 2016 at 10:05 am

Busting the myths of judicial review: new empirical evidence on outcomes and value for money

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UKAJI

This post summarises the findings of a study into the effects of judicial review (JR) in England and Wales which was funded by the Nuffield Foundation and undertaken by the Public Law Project and the University of Essex, with Maurice Sunkin as the Principal Investigator.
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By Varda Bondy, Lucinda Platt and Maurice Sunkin

Overview

The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences concerns the use and effects of judicial review (JR) in England and Wales, primarily from a claimant perspective. Judicial review provides a route for obtaining legal redress against public bodies, including in human rights cases, when no other suitable remedy is available. It also provides a means by which public bodies may be held accountable for the legality of their actions. In these ways JR gives practical effect to the rule of law.

The research:

  • builds on previous work to throw…

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Written by lwtmp

October 26, 2015 at 10:15 am

Senior President of Tribunals

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Sir Ernest Ryder has replaced Sir Jeremy Sullivan as Senior President of Tribunals. He took up the role in September 2015.
More information about Sir Ernest is at https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/biographies/senior-president-tribunals-biography/

Written by lwtmp

October 24, 2015 at 10:22 am

Housing disputes – court or tribunal? Civil Justice council review

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The Civil Justice Council has asked Judge Siobhan McGrath to take another look at the best ways for resolving housing disputes. This will follow up work done some years ago by the Law Commission. The Commission argued that a wider range of issues could go to what was then known as the Residential Tenancies Property Tribunal.

Since then there have been at least two relevant and significant developments. First, disputes relating to disputed tenancy deposits are mostly determined by alternative dispute resolution procedures created by the introduction of Tenancy deposit Protection.

Secondly, in Scotland there are proposals for establishing a specialist housing tribunal. (There is also a specialist Residential Tenancy Board in Ireland).

The outcome of the review is expected early in 2016.

For further information go to https://www.judiciary.gov.uk/related-offices-and-bodies/advisory-bodies/cjc/working-parties/working-group-on-property-disputes/

Written by lwtmp

September 29, 2015 at 3:06 pm

Court fees: new decisions; new consultation

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In purely commercial terms, the civil justice and tribunals system operates at a financial loss. Many argue that this is as it should be – the provision of courts and tribunals is a public service that should be financed generally by the state, not just by those who have to use the courts. But the former Coalition Government and the current Conservative Government do not share this view. They argue that users of court and tribunal services should pay more for them than they historically they have done. Despite recent increases in court fees, the Government states that the Courts and Tribunals Service costs £1 billion more than the income received through fees.

In January 2015, I noted here the decisions of the Government to introduce new court fees – decisions which, when they came into effect in April, resulted in a great deal of complaint from the legal profession. Those decisions were also accompanied by a consultation on other proposed changes to court fees.

This incremental approach to policy making – linking decisions and consultations – has now been used again. In July 2015, the newly elected Conservative Government reached its conclusions on the issues it consulted on in January 2015, and at the same time set out further proposals for fee changes on which views are sought – nicely timed for the holiday period when Ministers and civil servants are away, leaving holiday homework for those who have to respond to these documents!

The July 2015 document sets out the following principal decisions and issues.

Court fees – general

1. Following the January consultation, the Government has decided to increase the fees for issuing a possession claim in the county court by £75, from £280 to £355. The Government claims that the available evidence suggests that this increase will not deter anyone who would otherwise have taken their claim to court. it does not mention the ultimate impact this decision may have on the person against whom possession is being sought.
2. The Government has also decided to increase the fees for general applications in civil proceedings by £50, from £50 to
£100, for an application by consent and by £100, from £155 to £255, for a contested application. In order to ensure the most vulnerable are not affected, the Government has decided to exclude from this fee rise applications such as those to vary or extend an injunction for protection from harassment or violence.
Divorce fees
In December 2013, the Coalition Government also consulted on increasing the fee payable to issue divorce proceedings from £410 to £750. The Government has now announced that it will Increase the fees for issuing divorce proceedings to £550. The Government states:
We have carefully considered the concerns raised during the consultation and decided not to increase fees by 80% as originally proposed. Instead we will press ahead with a more affordable increase of about a third. We are also protecting the most vulnerable by ensuring that fee remission is available for those who need it, such as women in low wage households.
What is interesting to me is whether there are opportunities here to encourage parties to potential divorce proceedings to issue proceedings on-line. While some divorce proceedings are extremely complex, many are not. Should not the Government be developing a portal to enable divorce proceedings to be issues on-line, such as now happens in other parts of the civil justice system, e.g. for money claims and possession claims? Lower fees for issuing proceedings online would be expected.

It cannot be said that the three changes listed above are going to impact significantly on the £1bn shortfall; the Government’s own estimates are that the increased fees will only raise around £60 million.

Further proposals

It is worth remembering that in determining the balance between what users pay towards the overall cost of the court and tribunal service as compared with the financial burden that falls on the taxpayer. That is why, in the last Coalition Government,  section 180 of the Anti-social Behaviour Crime and Policing Act 2014 gave the government power to set fees at a level above the costs of proceedings to which they relate, i.e. in crude terms to make a surplus on certain types of proceedings which could be used to fund other types of process.

The Government has now set out further proposals relating to fees for proceedings.

First, it proposes an increase in the maximum fee for money claims from £10,000 to at least £20,000. Fees are currently payable on 5% of the value of a claim up to a maximum fee of £10,000. The proposal is therefore to double the maximum fee. The Government notes that this change will only affect the highest value claims, worth £200,000 or more. There are 1.2 million money claims each year, of which only 5,000 will be affected.That is just 0.4% of the total, or 1 in every 240 money claims. The Government argues, with some force, that many of the claims brought for higher values will involve large multi-national organisations or wealthy individuals. It therefore thinks it  right to ask them to contribute more. In order to protect
the most vulnerable, personal injury and clinical negligence claims will be excluded from this higher cap and fee remissions for those of limited means will continue to apply.
Second, the Government proposes to introduce or increase fees for certain tribunals. Thus fees in the Immigration and Asylum Chamber would, while applying exemptions to protect the most vulnerable.
The Government states it will not be applying any fees to the Social Entitlement Chamber of the First-tier Tribunal, where most applicants do not have the means to pay, or to the Mental Health Tribunal, which deals with especially vulnerable individuals.
However, it does want to introduce fees to the property, tax and general regulatory chambers. In the property tribunal, it proposes fees at low levels for the majority of applications, while setting higher fees for leasehold enfranchisement cases where there are often large sums of money at stake. In each of the Tribunals being consulted on, the Government says its aim is to recover 25% of the total cost of the service through fees with taxpayers footing the rest of the bill.
What is disappointing about these proposals is that there is no reference to the work done by the now defunct Adminitrative Justice and Tribunals Council, which suggested that discussion of income streams for providing the tribunals service should also include consideration of what financial contribution those government departments against whom decisions are being appealed should make, particularly in cases where the departmentd loses the appeal. The Council felt that the incentives on departments to get the decision right first time were not sufficiently strong.
The Consultation on these proposals runs until mid-September. It may be anticipated that consequent decisions will emerge around the end of the year.
Full details of the decisions and consultation proposals are in https://consult.justice.gov.uk/digital-communications/further-fees-proposal-consultation/supporting_documents/enhancedfeesresponseconsultationonfurtherfees.pdf.
Full lists of the new fees are in Annex B; lists of the proposed new fees are in Annex C.

Reflecting on how measures set out in the Queen’s Speech 2015 may impact on the English Legal System

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The Queen’s Speech sets out each year the bare bones of the proposed legislative programme for the forthcoming 12 months.

I’ve been looking through the detailed briefing to see whether there are issues which will affect the English Legal System (ELS) that may not be apparent from the speech itself.

Here are my personal comments:

Enterprise Bill.

The headline aim of the new Bill is to reduce red tape and improve the ways in which regulators work. But there are also two specific ELS related issues that may be noted:

  • Establishing a Small Business Conciliation Service that will handle business-to-business disputes without the need for court action, tackling  in particular, late payment issues;
  • Introducing business rates appeals reform, including modifying the Valuation Tribunal powers to consider ratepayer appeals.

Immigration Bill

Among proposed measures to be set out here, there are proposals to change the way in which immigration appeals work. In particular, the Government plans to:

Extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 the
last government cut the number of appeal rights but other than foreign criminals, migrants retain an in-country
right of appeal against the refusal of a human rights claim. We will now extend the “deport first, appeal later” principle to all cases, except where it will cause serious harm.
Devolution
In addition to the well publicised plans to devolve further legislative power to the Scottish Assembly Government, there are also proposals for a new Wales Bill and a Northern Ireland bill that will also contain detailed devolution measures.
English Votes for English Laws
This contentious measure, designed to ensure that only English MPs vote on legislative measures that will only apply in England is to be introduced, not by legislation, but by changes to the Standing Orders of the House of Commons.
Investigatory Powers Bill
Among other issues this will deal with the question of who should authorise various forms of electronic surveillance – the Home Secretary or senior Judges (as recently recommended by the Government’s Independent Reviewer of Counter-Terrorism legislation)
Policing and Criminal Justice Bill
Among other things, this will change the law on Bail, The proposals are
To create a presumption that suspects will be released without bail unless it is necessary.
The Bill would initially limit pre-charge bail to 28 days, with an extension of up to three months, authorised by a senior police officer.
In exceptional circumstances, the police will have to apply to the courts for an extension beyond three months, to be approved by a magistrate.
This will introduce judicial oversight of the pre-charge bail process for the first time, increasing accountability and scrutiny in a way that is manageable for the courts.
British Bill of Rights
Proposals on this are delayed.
Victims of Crime Bill
This will put existing protections for Victims on a statutory footing and give greater protection to victims and witnesses
Votes for Life Bill
This will give UK citizens who live abroad a life time right to vote, rather than, as at present losing that right after 15 years.
Draft Public Sector Ombudsman Bill
Proposals to merge the current Parliamentary Commissioner, local government ombudsmen and the Health Service Ombudsman will be considered in a draft Bill.
Of course at this stage, most of the details are not available and they may well change during their various Parliamentary processes. But it is worth noting these issues so that you can keep an eye on them.
For more detail go to https://www.gov.uk/government/publications/queens-speech-2015-background-briefing-notes

The changes to Judicial Review – Criminal Justice and Courts Act 2015

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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.

Written by lwtmp

June 17, 2015 at 11:23 am