Following on from our e-bulletin on 29 April reporting on the announcement of changes to the judicial review process, the Civil Procedure (Amendment No 4) Rules 2013 (SI 2012/1412) ('the Rules') have been made to implement the changes by way of amendments to the Civil Procedure Rules ('CPR') to take effect from 1 July 2013.
- The time limits for bringing a judicial review claim will be shortened from three months to six weeks for planning cases and 30 days in procurement cases.
- Where a judge certifies an application for permission to bring a judicial review claim as 'totally without merit', the claimant's right to have the permission application reconsidered orally ('oral renewal') will be removed.
- In cases certified as 'totally without merit' any appeal to the Court of Appeal will be on the papers only, with no right to an oral hearing before the Court of Appeal.
- The changes will take effect through amendments to the CPR and will take effect from 1 July 2013.
- Further reforms are planned which aim to make procedure in housing and infrastructure cases more efficient. Developments are expected by summer 2013.
Following a detailed consultation titled 'Judicial Review: proposals for reform' (the 'Consultation Paper') which set out various proposals for the reform of judicial review, on 23 April 2013 the Government announced its intention to introduce reforms to the procedures for judicial reviews.
The Government's review of this area was prompted by concerns over the significant growth of judicial review applications – over 11,000 in 2011, up from 160 in 1974 – of which just one in six were granted permission to proceed. This, the Consultation Paper suggested, indicated problems of judicial review being used in 'weak, frivolous and unmeritorious' cases as a PR measure or tactical delaying device.
Obviously, dealing with unsuccessful applications has significant time and cost implications. The Government is also concerned however with the resultant uncertainty over public authority decisions. This is seen, for example, in the practice of halting planning and infrastructure developments until the time period for challenging any public authority decisions is over, whether there is an identifiable risk of challenge or not. This influences investment and growth in the sector overall.
The stated aims of the reforms are therefore to:
- discourage potential claimants from bringing weak, frivolous or unmeritorious claims;
- ensure claims are brought quickly; and
- prevent the progression of weak cases early on.
The Rules were made on 4 June 2013 to implement changes by way of amendments to CPR 52 and 54, and are stated to come into effect on 1 July 2013.
Currently, a judicial review claim must be brought 'promptly and in any event not later than three months after the grounds to make the claim first arose' (CPR 54.5).
The Rules amend CPR 54.5 so that the claim form for an application relating to a planning decision must be filed within six weeks from the date when grounds for the application first arose and in relation to a decision governed by the Public Contracts Regulations 2006 within 30 days. The amendment does not apply to a judicial review application where the grounds arose before 1 July 2013.
The planning decisions affected by this rule change will be any decision made by the Secretary of State or local planning authority under the planning acts. The 'planning acts' has the same meaning as in section 336 of the Town and Country Planning Act 1990. Decisions on planning policy will therefore be excluded from the reforms.
A decision governed by the Public Contracts Regulations 2006 for these purposes means any decision the legality of which is or may be affected by a duty owed to an economic operator by virtue of regulation 47A of those Regulations (and for this purpose it does not matter that the claimant is not an economic operator).
One of the effects of this change is greater consistency with statutory time limits in that the new planning time limit will now be in line with the right to challenge under the Town and Country Planning Act 1990 (section 288). The new procurement time limit is also consistent with the limit laid out in the Public Contracts Regulations 2006, under which most procurement decisions are challenged.
The Rules amend CPR 54.12 so that where the court refuses permission to proceed on the papers and records the fact that the application is totally without merit, the claimant may not request an oral renewal. The amendment does not apply to a judicial review claim where the claim form was filed before 1 July 2013.
The Rules also amend CPR 52.15 (judicial review appeals) so that where permission to apply for judicial review has been recorded as totally without merit in accordance with CPR 23.12, any appeal of that decision is to the Court of Appeal on the papers only. The amendment does not apply to a judicial review claim where the claim form was filed before 1 July 2013.
The 'totally without merit' threshold is already judicially applied and understood in CPR 23.12 which requires the Court, when dismissing any application considered to be totally without merit, to record that fact in its order.
The Government has indicated that its consideration of judicial review will continue with a view to further streamlining, particularly targeted at infrastructure and housing developments. Further reform measures can be expected in summer 2013.
The Government is keen to emphasise that these are 'straightforward procedural reforms' to remedy abuse of the system by those pursuing weak and vexatious claims. The proposals were criticised by some responses to the Consultation Paper for lack of evidence and threatening the rule of law. By presenting the reforms as procedural rather than a full-scale upheaval of judicial review, the Government is attempting to combat these criticisms.
As the time limit for planning and procurement cases is reduced in line with statutory limits, the increased certainty may well be of advantage to developers or others benefitting from public authority decisions.
There is some concern over increased restrictions on obtaining an oral permission hearing. The current purpose of oral renewal is to ensure that cases with merit are not wrongly dismissed on paper assessment. Although the benefits of claimants thinking carefully about the merits before bringing a claim are clear, there are obvious risks involved in limiting access to hearings. The Government has chosen to try to restrict the number of cases themselves, rather than consider alternative measures to address the problems of cost and delay directly.
It remains to be seen what effect these reforms will actually have on the number of judicial reviews overall and the time and cost involved. What is interesting is that the Government has stressed that this is an ongoing process, with housing and infrastructure to be the next focus of reform.