Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘judicial review

Collection of responses to the Independent Review of Administrative Law (IRAL)

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Given the importance of judicial review, it seems strange that the Independent Review of JR, chaired by Lord Faulks, decided it would not publish submissions it received to the Consultation it launched. This blog from the UK Institute for Administrative Justice very usefully provides a list of those submissions of which it is aware, with links to them.


Given the decision of the Independent Review of Administrative Law (IRAL) not to make publicly available responses received as part of its call for evidence, UKAJI has decided to bring together in one place IRAL responses which have been made public. Should you wish to include an IRAL responses on this page, please contact Lee Marsons on

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Written by lwtmp

November 4, 2020 at 10:46 am

Independent Review of Administrative Law

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In an earlier blog (13 July 2020), I noted the House of Lords Library paper on the proposed Constitution, Rights and Democracy Commission, an idea contained in the Conservative Party manifesto for the 2019 General Election.

Although no further steps towards the creation of the Commission have been announced, at the end of July 2020 the Government announced that it was establishing an independent review of administrative law to look in particular at judicial review – the power of the courts to review and where necessary overturn a decision made by Goverment.

Governments frequently complain that the use of judicial review can prevent them from taking decisions they think are necessary. Defenders of judicial review argue that the principle of the rule of law demands that executive/administrative actions can only be taken if they are authorised by law.

The Independent Review, chaired by Sir Edward Faulks QC, a former Minister of State for Civil Justice, has been asked to examine a number of questions relating to judicial review.

The Terms of Reference for the Review state that the Review should

  • examine trends in judicial review of executive action,  in particular in relation to the policies and decision making of the Government;
  • bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law;
  • consider data and evidence on the development of JR and of judicial decision-making and consider what (if any) options for reforms might be justified.

More specifically the review has to consider:
1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality (an area of law developed by the judges) should be codified in statute;
2. Whether the legal principle of non-justiciability  (i.e. that certain types of decision cannot be reviews in the courts) requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government;
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful; and
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing – i.e. deciding who can bring an action by way of judicial review; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners (the ability of bodies not parties to an action to intervene in the action by providing specialist advice or assistance).

The Review has been asked to report by the end of 2020. Recommendations will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancashire, Michael Gove.

Although the announcement does not state this, the creation of this panel is, at least in part, a result of the decision of the Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. The issues in the case were noted in this blog on 24 September 2019. Although it was argued that the Prime Minister’s use of the prerogative to prorogue Parliament (i.e. bring a Parliament to an end prior to the holding of a General Election) was non-justiciable – i.e. it could be reviewed by the Court, the Supreme Court rejected this argument and found exercise of the power was justiciable. Further, there the effect of the Prime Minister’s decision was to prevent all Parliamentary activity for 5 weeks, this was far more than necessary to prepare for a General Election and so went beyond the scope of his prerogative power and was unlawful.

The announcement of the review and links to the Terms of Reference are at

The Supreme Court decision in the Miller case is at

Proposed Constitution, Democracy and Rights Commission

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One proposal that caught the eye in the Conservative Party’s manifesto for the December 2019 general election was that, following the UK’s withdrawal from the EU, it would be necessary to look at “broader aspects” of the UK’s constitution. The idea was that a constitution, democracy, and rights commission should be established to examine the following issues:

  • the relationship between the government, parliament, and the courts;
  • the functioning of the royal prerogative;
  • the role of the House of Lords; and
  • access to justice for ordinary people.

Other areas would include examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective government.

The Government has said that it wants to ensure a range of expertise is represented on the commission. It also wants the commission to evidence from third parties and civic society to inform any recommendations. However, there are currently limited details available on the remit, form, and composition of the commission.

Several commentators and academics have welcomed the general principle of reviewing the UK’s constitutional arrangements. However, some have expressed concern about the context of the commission, particularly coming after the Supreme Court found against the Government on constitutional issues.

Those interested in starting to think about the issues which the Commission, once established, might consider will find the Research Briefing paper, written by Charley Coleman from the House of Lords Library and published in late March 2020, to be an excellent introduction.

The briefing can be found at

Judicial review and Covid-19: reflections on the role of crowdfunding

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This is an interesting item on the use of crowdfunding to pursue issues arising out of the Covid 19 pandemic. it raises some interesting questions about whether this form of litigation finance is appropriate in all circustances.


Judicial review and Covid-19: reflections on the role of crowdfunding

IMG_20200604_123218Sam Guy – MA Social Research student and incoming ESRC-funded PhD candidate at the University of York

The Government’s response to the Covid-19 pandemic has been subject to significant numbers of judicial review challenges, many of which have been financed using crowdfunding. These cases, and the public’s responses to them, illuminate some of the opportunities and threats posed by this resource as a form of judicial review funding.

Crowdfunding as responsive collective action

There are at least two benefits of crowdfunding that have become particularly apparent in the pandemic. Firstly, it can offer a quick and expedient method for claimants to raise money towards potentially otherwise unaffordable litigation. The current environment for public interest judicial reviews is one of scarce state funding and high costs risk. Into this context, crowdfunding provides an alternative, democratised source of funding. As a result…

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Written by lwtmp

July 2, 2020 at 11:19 am

A big day in the Supreme Court: R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)

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Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.

For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.

The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.

That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar.  It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.

However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days.  That was the average amount of time needed to sort out the Queen’s Speech.

The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods) but other Parliamentary business does continue.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at,

Improving Immigration and Asylum procedures

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Immigration and asylum is always controversial. People have strong view, both for and against current immigration policy and practice. But these policies are underpinned by a legislative framework (albeit a very complex one) and if we believe, as I do, that upholding the rule is an important societal value, then it is important that those impacted by our law on immigration and asylum should be able to rely on decisions that are made in accordance with the law, and that there should be rights of appeal where something has gone wrong.

For a number of years, however, the immigration and asylum appeals process has been under close government scrutiny. In the early part of the 21st century, the concern was with the huge numbers of immigration cases being taken on judicial review to the High Court. More recently, most of these cases were taken away from the High Court and transferred to the Immigration and Asylum chambers of the First Tier Tribunal and the Upper Tribunal.

However, numbers remained high. In this context, there were concerns that too many cases brought were unmerited, being used as a delaying tactic to postpone deportation; and that some of those providing advice and assistance in immigration cases were not providing a properly professional service.

As part of its major series of reports on the justice system, written to assist the Transformation of our Justice System programme led by HM Courts and Tribunals Service, JUSTICE, the all-party Human Rights group, has just published a report Immigration and Asylum Appeals – a Fresh Look. (I declare an interest, I was a member of the working party, chaired by Sir Ross Cranston, that wrote the report.)

In it they try to take a dispassionate look at the problems and challenges which face the immigration and asylum appeals procedure. Their approach is to look at each of the steps through which a case may go in order to  identify difficulties and recommend practical change.

The report is quite detailed. In outline, it argues:

Home Office refusal decisions The Working Party’s view is  that better Home Office decision-making – with more emphasis on getting it right first time – is the key to delivering a better appellate system;

The application process for immigration and asylum appeals. Here the working party argues that more detailed attention needs to be paid to the move to online processes. At the same time the working party addresses the issue of unsupervised, unqualified and poor quality representatives purporting to provide advice and assistance to appellants;

Appeals against adverse decisions of the Home Office on immigration and asylum matters in the First-tier Tribunal (Immigration and Asylum Chamber). This examines the important role of tribunal case workers in moving cases forward. It also wants to see stronger judicial case management to improve tribunal efficiency.

Hearings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). This section of the report focusses in particular on video-conferencing and video-hearings, recognising the potential advantages of these models. At the same time, the report stresses the fundamental principles that should govern any expansion in their use and where they will not be appropriate.

Appeals to the Upper Tribunal (Immigration and Asylum Chamber), Judicial Reviewapplications and appeals to the Court of Appeal. This part of the report focusses on the multiple stages that may be gone through when seeking permission to appeal. The working party considered the tension between the important right of review in this jurisdiction and the pressure on the system that flows from too many appellate stages. While not recommending removing rights of appeal, the report outlines ways to streamline this process.

A key theme to emerge from the report is that there needs to be much better communication between the parties.The Working Party considers how this might be facilitated both at the pre-hearing stage and on a continuing informal basis.

Detailed recommendations are made on ways to improve the management of cases and to reduce the number of unnecessary appeals – to the benefit of all participants in the system and the administration of justice more generally.

The above note has been adapted from the report which is available at




Setting limits to the exercise of prerogative powers: R (Miller) v Secretary of State for Exiting the European Union

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One of the most important legal challenges to the exercise of prerogative power has recently been made in the case of  R (Miller) v Secretary of State for Exiting the European Union. This is the case that challenged the Government’s view that it could trigger Article 50 of the Treaty of the European Union without the necessity for a vote in Parliament. This is a case of very considerable constitutional importance. I provide here links to a  summary of the case, and  to the whole judgement.

The decision of the Administrative Court is being appealed go the Supreme Court. The outcome of that hearing is expected early in 2017.

A summary of the decision can be found by clicking on the following link:


The full judgement is at

While it was accepted that the Government can use its prerogative power to enter international treaties, in the case of the European Union, the relationship between the UK and the EU was underpinned by the European Communities Act 1972, which had been enacted by the UK Parliament. The judges accepted that, if the UK were to exit the EU, this would inevitably result in rights and obligations brought into the UK’s domestic law by the Act of 1972 being altered.

The judges held that the Sovereignty of Parliament was the most important  principle in the UK’s constitutional arrangements. While the Parliament could make or unmake any law, it was not permissible to use prerogative powers to change law enacted by Parliament. Thus, in the current situation, it was not permissible to use  prerogative power to trigger the start of the process of leaving the EU.

Sections of the UK Press saw this decision as undermining the will of the people (as expressed in the result of the referendum on leaving the EU). However, a more sensible view is that in this decision the Court was deciding  that the fundamental principle of the Sovereignty of Parliament should be upheld and that it was the proper function of the Court – which is independent of Government – to rule that in these circumstances the Sovereignty of Parliament was not to be undermined by the use of prerogative power.




Written by lwtmp

November 6, 2016 at 8:21 am

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

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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.


By Varda Bondy, Lucinda Platt and Maurice Sunkin


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

Judicial review: new consultation

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Decisions on the reform of Judicial Review were taken by the last Coalition Government.

This consultation seeks views on detailed proposals for court and tribunal rules which are needed to bring into effect some of the changes made to juducial review procedures. Thus the consultation paper under review here sets out proposals:

  • that a declaration of funding sources is required on an application for permission to bring judicial review;
  • that details of third party funding or likely funding in connection with an application for judicial review, need not be provided where the funding is below a threshold of £1,500; and
  • that a more detailed picture of the applicant’s financial circumstances is required on application for a costs capping order than on application for permission

The Government argues that these proposals will limit the potential for third party funders to avoid their appropriate liability for litigation costs.

It  also intends that the new rules will ensure that when costs capping orders are made – limiting or abolishing a party’s costs liability – they are made in appropriate cases.

Details of the Consultation, which runs until mid September 2015, are at

Written by lwtmp

July 26, 2015 at 2:46 pm

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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