The government is carrying out a consultation on measures designed to stem the growth in applications for judicial review. The proposed reforms are targeted at improving the process for claims with a strong prospect of success. However, there is concern that they may unfairly limit potential redress against government decisions in the procurement and planning spheres.
Judicial review enables businesses to challenge decisions taken by Ministers, local authorities and other public bodies, if they are unreasonable, unlawful or have not been taken in accordance with due procedures. If successful, the contested decision may be set aside.
The consultation paper identifies that there has been significant growth in the number of applications for judicial review, particularly against immigration and asylum decisions, however permission to bring proceedings is often refused. It also takes a long time to dismiss weak applications, which is a substantial cost to public resources. Further, the number of cases being brought has made public decision makers overly cautious.
The government therefore proposes three reforms:
Reducing the time limit available for applying for judicial review decisions.
Judicial review applications usually have to be made “promptly, and in any event not later than three months after the grounds to make the claim first arose”.
The government is proposing reducing this time limit to 30 days from the claimant’s knowledge of the decision being challenged, for procurement decisions, and 6 weeks from the local authority’s decision, for planning decisions. The rationale is that these time limits correspond with the relevant statutory time limits for appealing the public authority’s decision under the Public Contracts Regulations 2006 and section 288 of the Town and Country Planning Act 1990, which governs decisions made by the Secretary of State, respectively. Further it will help to reduce the delay that can occur in the delivery of important public services and the planning system.
The government highlights in the consultation that the court will still have powers to allow a claim to be brought out of time where it is just and equitable to do so. In practice, however, the circumstances in which the court would exercise these powers are likely to be rare.
Removing the right to an ‘oral renewal’
Before a decision can be subject to judicial review, a claimant must apply for permission for its claim to be heard. Permission is granted or refused on the basis of the claimant’s written application. If refused, a claimant has the right to an ‘oral renewal’ or oral hearing, where its arguments for permission are heard.
The government’s proposals would remove the right to an oral renewal where either: (a) the same points have been heard in an oral hearing previously, or (b) the judge certifies, on the basis of the initial application for permission, that the case is totally without merit.
To introduce a new fee for oral renewal
The third proposal is to introduce a fee of £215 (potentially increasing to £235) payable when an application for an oral renewal is made. If the oral renewal is successful, the claimant would not have to pay a further fee for a full judicial review hearing. This fee would help cover the costs of the oral renewal, which a claimant currently receives for free.
The consultation period has now closed. If implemented, the reforms will have a number of impacts on the procedure for challenging government decisions:
- Shorter time limits. Companies who have applied for planning permission, or entered into a bidding process for a procurement contract, will be required to make quicker decisions as to whether to challenge a government decision.
- Less time for pre-action steps. There will be less opportunity to carry out pre-action steps, such as negotiations and exchange of information.
- Higher costs. A company may face higher costs in bringing a claim.