What’s the significance of the provisions around judicial review?

CJCA 2015, Pt 4, ss 84-92 and CJCA 2015, Sch 16 contain provisions relating to judicial review reform; here are ten reasons why they are significant:

1. Removal of judicial discretion

CJCA 2015, s 84 removes judicial discretion when determining whether to grant relief on a judicial review claim. If it is ‘highly unlikely’ that the outcome would have been ‘substantially different’ for the applicant if the ‘conduct complained of had not occurred’ then the High Court ‘must refuse to grant relief’. Moreover, when determining whether to grant leave to bring a judicial review action the High Court must consider if a defendant asks it to do so (and may consider of its own motion) whether the outcome for the applicant would have been different if the conduct complained of had not occurred. If the court considers it ‘highly likely’ that the outcome would not have been substantially different then it ‘must refuse to grant leave’. There is an exception if a case is certified as being of ‘exceptional public interest’.

2. Financing of cases

CJCA 2015, ss 85-87 relate to the financing of cases and awards of costs. CJCA 2015, s 85 requires the provision of information relating to the financing of cases. The High Court shall not grant leave to bring a judicial review action unless the applicant has provided the court with information about the financing of the application ‘that is specified in rules of court’. The rules of court (likely to be amendments to the Civil Procedure Rules 1998, SI 1998/3132 (CPR)) are not yet available, but we’re told that the information may include details relating to the ‘source, nature and extent of financial resources available…to the applicant’ to meet liabilities arising in connection with the application. It is stated that the rules of court must provide that only a person whose financial support exceeds a level set out in the rules of court has to be identified. So we wait with interest to see what level of detail, and perhaps evidentiary support, the rules of court will require an applicant to provide, and what the threshold sum will be for identification.

3. Quantum

CJCA 2015, s 86 provides that the High Court/Court of Appeal, when determining to whom and in what quantum the costs of a judicial review challenge should fall, ‘must have regard’ to the financing of the proceedings.

4. Interveners and costs

CJCA 2015, s 87 provides that interveners may be required to pay the costs of the principal parties in judicial review proceedings. The court must be satisfied that one of several conditions are met but, if met, then the court must make a costs award against the intervener in relation to costs incurred by a party as a result of the intervener’s involvement. Conversely, a principal party cannot be required to pay an intervener’s costs unless there are exceptional circumstances making it appropriate that this is ordered.

5. Costs-capping orders

CJCA 2015, ss 88-90 relate to costs-capping orders (also known as protective costs orders or PCOs). CJCA 2015, s 88 provides that a court may only make a PCO once leave to apply for judicial review has been granted. The court is only empowered to make a PCO on application by the applicant for judicial review. Rules of court (again probably an amendment to the CPR) will set out what information is to be contained in the application.

The court can only make a PCO if it is satisfied that a public interest test is made out, and that the application would be withdrawn, or the applicant cease to participate, if the PCO wasn’t made, and this outcome would be reasonable in the absence of the PCO. CJCA 2015, s 89 sets out the matters to which the court must have regard when considering whether to make a PCO in connection with judicial review proceedings. CJCA 2015, s 90 provides that regulations may be made that dis-apply CJCA 2015, ss 88, 89 in relation to judicial review proceedings that relate ‘entirely or partly to the environment’. In practice, most judicial review challenges that come within the remit of the Planning Court will fall within this definition. It is highly likely that the regulations will be made that provide for this.

6. How does this change the position around applications for judicial review?

The intention of CJCA 2015, s 84 appears to be to weed out cases at an early stage where the final outcome would afford an applicant only a Pyrrhic victory–to reduce the number of technical challenges, which are often only mounted as a delaying tactic and to reduce the burden on court resources. Although judges have always had a discretion to refuse leave, or to refuse to grant relief in the circumstances now enacted, the mandatory nature of the requirement may embolden judges to dispose of cases at an earlier stage, and will afford defendants an extra argument to deploy at the leave stage which, if raised, must be considered.

CJCA 2015, s 85 places an additional administrative ‘form filling’ burden on an applicant when applying for judicial review. While it has always been the case that some applications have been financed by an invisible third party, this requirement may have the effect of providing additional visibility where this is the case. The detailed requirements in relation to what information will have to be disclosed are not yet known, so it may still be possible for a third party to arrange its affairs so that its involvement is not disclosed but this remains to be seen. It’s possible that this provision might deter some third party financiers, but those who are determined (and with deep pockets) are unlikely to be fazed by this requirement.

The potential liability of interveners for costs set out in CJCA 2015, s 87 may make some interveners pause for thought before intervening, perhaps deciding instead to assist one of the principal parties behind the scenes instead of seeking active involvement in the case. Others, however, will be confident of not falling foul of the new tests in CJCA 2015, s 87(6) and will continue with a planned intervention.

7. What is the thinking behind the provisions relating to information about financial resources?

The thinking behind the provision is the fairer sharing of the costs of litigation. In principle, why should those privately financing an impecunious losing claimant (probably with the benefit of a PCO) not have to pick up some of the costs of the defendant who will be a public authority where otherwise those costs would fall to the public purse?

8. How will this information be used in practice?

How the information will be used in practice remains to be seen. The provisions require a court to have regard to the information, and to consider awarding costs against a person providing financial support, but it is left to judicial discretion whether to make such an award, and in what quantum. It will necessarily be a judgement call as to what level of award would be appropriate given the level of financial support offered.

9. What are the implications of the provisions around intervener status and costs?

Interveners are now at risk of a costs award against them if one or more of the conditions set out in CJCA 2015, s 87(6) are met–unless there are exceptional circumstances–but are unlikely to recover their own costs of intervention. Since interveners are often charities, NGOs, and other single issue or issue specific bodies, this might well put off some of these potential interveners given the financial risk. This is unfortunate, as often these classes of intervener provide positive contributions to the courts’ consideration of a particular legal problem. However, the conditions are framed so that an intervener will have needed to have:

  • acted unreasonably
  • been of no assistance to the court
  • raised issues not necessary for the court to resolve in the instant case, or
  • acted as one of the principal parties to be at risk of costs

Interveners will no doubt consider these conditions carefully before deciding whether to intervene, and once involved will need to frame their representations carefully to avoid pushing their own agendas on a particular issue that doesn’t need to be resolved by the court, or which would be of no assistance to the court in the circumstances.

10. How will the costs cap work in practice? How will this affect those seeking to bring a judicial review?

A PCO granted pursuant to these new powers will work in practice in the same way as PCOs currently work. The difference will be the judicial consideration needed prior to the grant of a PCO pursuant to these powers. The PCO can only be made after leave to apply for judicial review has been granted. However, in practice, the PCO will be applied for at the same time as the application for leave is made, and the PCO, if granted, is likely to be granted at the same time as leave is given.

CJCA 2015, s 88, 89 are likely to be important to applicants for judicial review in fields other than planning law. Again, there will be an additional ‘form filling’ burden, but this is unlikely to prove a deterrent given the costs security that a PCO could potentially provide if the tests are met. These provisions seek to make it harder to obtain a PCO, and might dissuade some from commencing unmeritorious or time-wasting proceedings.

CJCA 2015, s 90 is unlikely to change the situation in relation to PCOs for judicial review proceedings before the Planning Court. At present Aarhus Convention claims benefit from PCO protection (CPR 45.41-44), and the regulations to be made pursuant to this section are likely to maintain the status quo.

This article was first published on Lexis®PSL Dispute Resolution on 26 February 2015.

Interviewed by Nicola Laver.