Our education clients are well used to the possibility of their decisions being susceptible to challenge by judicial review, and are live to the possibility of challenging another public body whose decisions affect its interests. Following a consultation that ran from 13 December 2012 until 24 January 2013, the Justice Secretary, Chris Grayling has announced a number of changes aimed to tackle the increasing number of judicial review applications being made in England and Wales. New court rules will implement the changes which are expected to take effect this Summer. The measures include:
1. Introducing a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down.
The court’s permission is required for a claim for Judicial Review to proceed. A fee of £60 is currently charged when a Claimant applies for permission. The court usually determines whether to grant permission on a review of the papers submitted by the Claimant and Defendant. If permission is granted, a further fee of £215 is payable by the Claimant for the matter to proceed to trial. Where the Court refuses permission, the Claimant may request that the decision be reconsidered at an oral hearing, and until now there has been no fee for this stage. The introduction of a fee is designed to limit the number of applications for oral hearings, and also to offset some of the cost to the court system of conducting oral hearings. Where the application for permission at the oral hearing is successful, the fee for the full judicial review hearing will be waived.
2. Banning applicants from seeking a hearing in person if their initial written application has been ruled as totally without merit.
Where an application for permission is refused by the court on consideration of the papers, and the Judge considers that the case is totally without merit, he or she will, under the new measures, be able to assess it as such, with the consequence that the Claimant will no longer be able to request the court to reconsider the application at an oral hearing. An appeal to the Court of Appeal could be made but it would be restricted to the papers only. The aim is to reduce the opportunities a Claimant has to argue their case, particularly where their case is weak, in order to bring a greater degree of certainty for public authorities and to reduce the court resources involved in oral hearings.
3. Halving the time limit for applying for a judicial review of a planning decision from three months to six weeks.
Under the current regime, all applications for permission to bring a claim for judicial review have to be made “promptly and in any event not later than three months after the grounds to make the claim first arose”. This is the case, regardless of the nature of the claim (unless an alternative statutory time limit is applied). The new measure will, for the first time, introduce a new time limit for specified categories of case.
The new time limit will apply to all applications for judicial review relating to a decision whether or not to grant planning permission under the various planning acts, which will include any procedural decision taken by the Secretary of State or Local Planning Authority in reaching a decision under the Planning Acts. The Civil Procedure Rules will be amended so that all such claims should be brought within 6 weeks of the grounds giving rise to the proceedings.
The aim of this measure is reduce the cost to public finances of delays to planning developments and construction work affecting their financial viability.
4. Reducing the time limit for applying for a judicial review of a procurement decision from three months to 30 days.
Most challenges to procurement decisions should be brought under the Public Contracts Regulations 2006 which apply a 30 day time limit from the Claimant’s knowledge of the decision. Under the current system, it is however, possible for an application for Judicial Review to be brought in respect of the same decision up to 3 months after that decision. The new measure to be introduced will require that Judicial reviews of procurement cases, as defined in the Public Contracts Regulations 2006 should be brought within 30 days of the grounds giving rise to the claim.
The rationale for this measure is to reduce the delays in awarding contracts which can have a significant impact on service users and implications for the costs of delivery.
It is accepted that where a shorter time limit is to apply in planning and procurement cases, the requirement for parties to bring proceedings promptly will be unnecessary. In exceptional cases, and where the courts determine it is in the interests of justice, an extension to the time limits may be granted.
In such cases where there is a shorter time limit, there is unlikely to be sufficient time to fulfil the Pre-Action Protocol, and the Master of the Rolls is to be invited to revise the Pre-Action Protocol to disapply it in such cases. This will constrain the time available to seek a negotiated settlement.
The reforms are aimed at dealing with delays in the system and weak or ill-conceived cases, whilst in other respects maintaining the important role judicial review plays in holding public bodies to account. The Government is continuing to review the case for further reform, in particular regarding the process for planning and infrastructure projects.