The Government has very recently published its response to the consultation on proposals for reform to judicial review, due to be introduced in a forthcoming Criminal Justice and Courts Bill, changes to the CPR, and in secondary legislation. The earliest changes are due in Spring 2014. The proposed reform covers a large number of areas, but the key proposals of relevance to community care practitioners are as follows:
- At present, where the court finds there has been a procedural defect it will grant relief unless it is “inevitable” that the same conclusion would have been reached. This threshold is to be lowered to one where the procedural defect was “highly unlikely” to have made a difference;
- The Government is continuing to consider whether there is any more cost-effective means of resolving PSED disputes than bringing claims in judicial review;
- The Government will implement its proposal to withhold LAA funding from claims that are unsuccessful at the permission stage. Providers will be paid for pre-permission work (such as taking instructions, advising on merits of applying for permission), and will be back-paid for permission work where permission is granted but the substantive claim is ultimately unsuccessful. The LAA will, however, be entitled to pay providers for permission work where claims are withdrawn early as a result of a favourable settlement.
- Defendants will be able to recover their costs of attending an unsuccessful oral permission hearing, but will still have the choice as to whether or not to attend. Costs of successful oral permission hearings will not be recovered at the permission stage but will follow the event at the final determination of the case. These changes will be subject to the court’s usual discretion on costs awards.
- Primary legislation will be introduced to regulate protective costs orders, in particular reserving them for cases where there are serious issues of the highest public interest in cases granted permission and which otherwise would not be able to be taken forward without a PCO.
- Interveners will be required to bear not only their own costs (as they usually do at present), but also the costs of the other parties in responding to their intervention.
A draft of the bill, and of its progress through Parliament, can be found at the following link: https://www.gov. uk/government/collections/criminal-justice-and-courts-bill
There is currently a judicial review challenge before the Administrative Court in which the Public Law Project are challenging the imposition of a residence test for legal aid applicants. At the end of January Turner J granted permission to bring the JR. The substantive application will be heard on an expedited basis. It is believed that the MoJ will delay the introduction of the residence test from 31 March to May.