On 23 April 2013, the Government published its response (the 'Response') to a consultation titled 'Judicial Review: proposals for reform' (the 'Consultation Paper').The majority of changes to judicial review procedure proposed in the Consultation Paper will be introduced 'as soon as possible'.
- 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. The Pre-Action Protocol will not be applied in these instances.
- Where a judge certifies an application for permission to bring a judicial review claim as 'totally without merit', the applicant's right to have the permission application reconsidered orally ('oral renewal') will be removed.
- A £215 fee, the same fee level set for full judicial review hearings, will be charged for an oral renewal hearing. If permission to bring the claim is granted at the oral renewal hearing, the fee for the subsequent full hearing will be waived.
- The changes will take effect through amendments to the Civil Procedure Rules ('CPR') and secondary legislation. It is anticipated this will occur in summer 2013.
- Further reforms are planned which aim to make procedure in housing and infrastructure cases more efficient. Developments are expected by summer 2013
The Consultation Paper set out various proposals for the reform of judicial review.
The consultation 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. The Response points out that it takes on average 80 days to decide an application for permission on paper and a further 110 days if the application proceeds to oral renewal. Only 300 of 2,300 oral renewal applications were ultimately granted permission in 2011.
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.
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'.
Under the reforms, planning cases – which include all proceedings relating to a decision whether or not to grant planning permission or procedural decisions under the various planning acts, but exclude decisions on planning policy – will need to be brought within six weeks of the decision. This brings the limit into line with the right to challenge under the Town and Country Planning Act 1990 (section 288).
In procurement cases the limit will be thirty days. This is consistent with the limit laid out in the Public Contracts Regulations 2006, under which most procurement decisions are challenged.
These truncated limits, the Government appreciates, may prevent parties from fulfilling the Pre-Action Protocol, which includes considering settlement. As such, the Pre-Action Protocol will be disapplied in these types of cases and there will no longer be any requirement for promptness.
The Consultation Paper contained an additional proposal to clarify when the time limit starts to run in cases where there are ongoing or multiple breaches. It suggested that challenges should be brought within three months of the grounds first arising, or when the potential claimant knew or ought to have known of the grounds, rather than the end point or latest breach. This proposal has not been adopted.
If a judge certifies an application as 'totally without merit', there will no longer be an automatic right to apply for oral renewal. In what the Secretary of State for Justice, Chris Grayling, describes as 'clearly hopeless cases', the applicant will be therefore banned from proceeding.
The Response addressed various criticisms of the proposal. Although this change may have greater impact on foreign nationals given the volume of immigration claims, it is claimed to be justified because as an independent judicial assessment, it will only impact the very weakest cases. There is a risk of inconsistency between judges but the Response points out that parties can appeal against assessments to the Court of Appeal (on the papers). The Government says that the 'totally without merit' threshold is already judicially applied and understood. Any possibility of breaching Article 6 of the European Convention of Human Rights – the right to a fair trial – is dismissed by the Government since the claimant would have failed to make out a claim to be determined and therefore Article 6 would not be engaged.
The result of this change is intended to be a targeted impact on time-wasting, thereby increasing access to justice for cases displaying merit.
The further Consultation Paper proposal to remove the right to oral renewal where the same matter, or substantially the same matter, has been heard at a judicial hearing before has not been adopted. The Government continues to believe that preventing previously litigated cases from being re-heard is desirable. However, it accepts that there are practical difficulties, including defining 'prior judicial hearing' and 'substantially the same matter', which pose risks of confusion and further satellite litigation.
There is currently no fee for an oral renewal but following the reforms a £215 fee will be payable for permission hearings. This is the same fee currently charged for the full substantive hearing. To ensure that claimants with an arguable case are not doubly charged, the substantive hearing fee will be waived if permission is granted at oral renewal.
The Government states that the fee is proportionate to the costs involved and could instil in potential claimants a greater financial interest in the outcome of their case. Concerns were raised over the fee becoming a financial barrier to justice, deterring meritorious claims and increasing disparity between claimants and the public authorities being challenged. However, the fee is not thought by the Government to limit access to justice because it impacts only those who are refused permission at a hearing i.e. applicants without an arguable case. Fee remissions are also available; those unable to afford the fee will retain the right to a permission hearing.
There is an ongoing discrete consultation process relating to judicial review fees. The oral renewal fee is therefore subject to the outcome of this exercise in due course.
The Government has invited the Civil Procedure Rules Committee to consider the CPR amendments necessary for implementation. Secondary legislation will follow, introducing the oral renewal fee.
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 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. It is possible, however, that the disapplication of the Pre-Action Protocol risks defeating the aim of the reform as fewer cases may settle during pre-action negotiations.
There is also 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 applicants 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. One obvious measure not considered would be to deploy greater judicial resources to speed up dealing with cases in the Administrative Court.
It remains to be seen what effect these reforms 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.