The Government has opened the latest in its series of consultations on proposals for the 'reform' of judicial review. The current consultation arises out of changes to judicial review procedure already introduced by Part 4 of the Criminal Justice and Courts Act 2015 (CJCA).
Those changes concern the financial information that all claimants starting judicial review proceedings will have to supply to the Court. They also concern the financial information that any claimant seeking a cost capping order will have to supply to the Court and to the other parties. Unsurprisingly – this has been the leitmotif of the whole 'reform' process – there is a striking lack of evidence to justify the proposals, allied to an apparent blindness to what currently happens in practice and to the powers currently available to the courts.
The aim of the current proposals is said to be “to limit abuse and evasion of proper costs liability” and the means by which this is to be tackled is by ensuring “the courts have the necessary financial information” when considering costs. But neither in this paper nor any of the predecessors has the Government presented any actual evidence (in the form of specific examples) of such abuse or evasion or any evidence of Courts being unable to obtain relevant financial information.
The first group of proposals now consulted on follow from sections 85 and 86 CJCA. Section 85, when brought into force, will make it mandatory for every claimant to provide information about the financing of their claim and section 86 will require the Court first of all to take that information into account when making an order for costs in judicial review proceedings and then in addition to consider, if that information identifies a third party as providing or as likely or able to provide financial support for the purposes of the proceedings, whether to make an order for costs against that third party.
What is now proposed is to amend the Civil Procedure Rules so that every claimant will have to declare whether or not they can meet the anticipated liabilities arising in connection with the judicial review and, if they cannot, identify anyone who is contributing or likely to contribute £1500 or more. Additionally, in the case of corporate bodies, they will also have to provide the names and addresses of all of their members.
There are two particularly striking aspects to this proposal. First, it seems to be based on a theory (although fantasy might be a better description) that there are a significant number of cases in which third parties are surreptitiously funding and controlling judicial review cases – and there is no evidence at all that this is happening. Second, in setting the notification threshold at £1500, the Government has adopted a surprising approach to the evidence available to it: it relies on three external sources of data (which are described as “not particularly substantial or quality assured”) to reach a conclusion that the cost of both sides of a judicial review are likely to be between £11,000 and £22,000 and in light of that latches on to £1500 as a contribution level which “may be indicative of a degree of third party control of a claim”. However this ignores figures from the Government Legal Department, relied on elsewhere in the consultation paper, which put defence legal costs alone in a non-immigration or asylum judicial review as being between £8,000 - £25,000. In view of the fact that a claimant’s legal costs will normally at least match (and in most cases will substantially exceed) the defence costs, a more realistic notification threshold, even on the Government’s own approach, would be at least £3000.
The second group of proposals now consulted on follow on from section 88 CJCA. Section 88 sets out the circumstances in which a cost capping order (protective costs order) may be granted. What is now proposed are amendments to the Civil Procedure Rules so that a claimant applying for a cost capping order has to provide relatively detailed information about its financial position, including details of any third party funding.
Again, there are two really striking aspects of the proposals. The first is that the number of cases in which it will apply is tiny – on the Government’s own figures probably no more than 5 a year and quite possibly less. The second is that in practice most, if not all, of the information covered by the proposed rule change is information that an applicant seeking a protective costs order now would in any event provide (and if it didn’t, would be most unlikely to obtain the order). There is no recognition, or even the hint of a recognition, of this in the consultation paper.
In his Ministerial Foreword to the consultation the Lord Chancellor says that the thing he will defend above all else is the rule of law and that “judicial review is an essential foundation of the rule of law”. Welcome words but difficult to reconcile with bringing forward these proposals, based as they are on a fundamental misconception that judicial review is being abused and liability for costs being evaded.