Further to our e-bulletin of 12 September 2013 (see link here) reporting on the Government's consultation on a wider package of reforms to judicial review, the Government has now announced the results of that consultation process and its response. Although some proposed reforms have been halted, the Government is still intending to introduce wide ranging changes to judicial review as a matter of urgency.

Key points

  • Planning cases will be dealt with in a new Planning Court with specialist judges, with the aim of dealing with these cases more quickly.
  • There will be no changes at present to the standing test, governing who can bring judicial review proceedings.
  • In cases where the challenge is based on a procedural defect which, even if corrected, would be "highly unlikely" to make any difference to the substantive outcome, permission for judicial review should not be granted, or the Court should not grant any substantive remedy.
  • Costs disincentives – the Government is proposing costs measures such as allowing defendants to recover the full costs of unsuccessful oral permission hearings, tightening up the test for protective costs orders and asking third party interveners to bear their own costs and any costs for which they are responsible.

Background

Based on concerns about the growth in the number of judicial reviews and the danger of necessary projects being held up because of unmeritorious judicial review challenges, the Government issued a first consultation in December 2012 outlining some limited proposals for reforms to judicial review procedure in order to reduce the number of cases being brought. This consultation resulted in shortening of time limits within which judicial reviews in planning and procurement  matters could be brought, and in restrictions on when claimants could seek oral hearings if they were denied permission to proceed with their judicial review. These reforms took effect in July 2013.

In addition a planning fast track has been introduced within the Administrative Court to enable cases to be dealt with quickly and by specialist judges. Further, asylum and immigration judicial reviews (the sector which has experienced the greatest growth in terms of volume of cases) have been moved out of the Administrative Court to the Upper Tribunal in an attempt to free up Court time to deal with other types of judicial reviews more efficiently. These changes only took effect fairly recently and their impact on judicial review timescales overall is not yet clear.

However, the Government still considers that more needs to be done to prevent abuse of judicial review and to prevent growth and infrastructure being stifled by judicial review challenges being used as a delaying or PR tactic. Its consultation in Autumn 2013 set out a wide range of far reaching reforms. It appears that many of the responses received were critical, and some of the proposed reforms have been dropped. However, significant reforms relating to the planning sector and costs are to be introduced.

Planning

The consultation proposed establishing a planning chamber in the Upper Tribunal. However, having considered the responses the Government is not intending to pursue that option. Instead the Government will create a Planning Court in the High Court, with a separate list under the supervision of a specialist judge. The Civil Procedure Rules will also be amended to incorporate time limits for progression of these cases.

It is not yet clear how this will have any particular impact over and above the planning fast track that has already been introduced.

In addition the decision has been made to introduce a permission filter in planning statutory challenges under section 288 of the Town and Country Planning Act 1990, to bring these in line with the procedure in planning judicial reviews.

A proposal to prevent local authorities bringing challenges against nationally significant infrastructure projects has not been pursued, as the responses made clear that this was not a problem that had arisen under the new planning regime for such projects.

Procedural Defects

There is already the power for judges in judicial review to refuse to grant a remedy if they are of the view that correcting a minor procedural defect would make no difference to the substantive decision. The Government now intends to change this so that the threshold is whether it is 'highly unlikely' that the procedural defect would make any difference.

It appears that the Court should consider this question at the permission stage, and concerns raised in the consultation responses about the risk of permission hearings turning into lengthy and costly dress rehearsals have been dismissed as 'manageable' by the Government. However, it appears inevitable that the Court will have to consider detailed factual evidence at an early stage to make such decisions, which will lead to greater costs and delay overall.

Costs

The Government is making a number of changes to ensure that financial incentives are appropriate and deter unmeritorious cases. These include:

  • Allowing the costs of oral permission hearings (which the claimant can automatically request if permission for judicial review is refused by a judge on the papers, unless the judge considers the case to be totally without merit) to be recoverable from unsuccessful claimants, rather than just the costs of the acknowledgment of service as at present.
  • Limiting the use of protective costs orders (i.e. up front protection against paying much towards the defendant's costs if the claim fails) in non-environmental judicial reviews by insisting on stricter application of the requirements of the cases having merit, there being a strong public interest and the fact that the claimant would discontinue the claim and would be acting reasonably in doing so in the absence of a protective costs order, as well as introducing a presumption of cross caps on defendant's liability.
  • Third party interveners should bear their own costs and also be responsible for any significant increase in the other parties' costs caused by issues they raise, subject to the ordinary discretion of the Court.
  • Giving the Courts greater power to seek financial information on who is actually funding claims, with a view to the use of non-party costs orders where appropriate.
  • Restricting legal aid for work on the permission stage to cases where permission is ultimately granted (subject to some discretion).

Other reforms

The Government also intends to implement its proposed reforms concerning relaxing the situations in which a case can go straight to the Supreme Court from the court of first instance (known as leapfrogging), such as where there are issues of national importance and allowing leapfrogging directly from tribunals.

No changes are to be made at present to the standing test, which governs who may bring a challenge for judicial review. It appears that the decision not to pursue this proposal is due to the opposition voiced in consultation responses, including the risk of a period of cost and uncertainty while any new test was litigated and tested.

Comment

The planning reforms set out in the paper will be welcomed by public bodies and developers alike, although quite what a Planning Court will add to the use of the planning fast track system already in operation in the High Court is yet to be demonstrated. The introduction of a permission filter in statutory challenges is obviously sensible and, when combined with the changes to judicial review time limits in planning cases in 2013, means there is greater consistency in both procedure and timescales between the two routes of challenge.

The reforms remain a direct and obvious attempt to discourage claimants from bringing judicial reviews, but also send a warning message to pressure groups, campaign groups or NGOs who are accustomed to bringing proceedings in the public interest without criticism or costs risks. This is unfortunate as often reputable NGOs can bring a wealth of specialised knowledge and experience to the Court on matters of great public importance, and their interventions are often welcomed by all parties. However, since the Court retains overall discretion on costs it may be that in practice judges are reluctant to apply the presumption that interveners bear costs for which they are responsible.