In its consultation “Extending Fixed Recoverable Costs in Civil Cases: Implementing Sir Rupert Jackson’s proposals”, which was launched on 28 March 2019, the Ministry of Justice has failed to take forward a proposal that could have had a significant impact on the ability of individuals to hold public bodies to account through judicial review proceedings.
Sir Rupert Jackson was commissioned by the former Lord Chief Justice and the Master of the Rolls to draw up recommendations for extending fixed recoverable costs. His report was published in July 2017 and included 2 recommendations in relation to JR costs, firstly that the ‘Aarhus Rules’ be adapted and extended to all JR claims and secondly that cost management be introduced in heavy JR cases. In his report Sir Rupert Jackson discussed, but did not recommend, the introduction of a scheme of fixed recoverable costs for ‘standard’ JR cases.
The Ministry of Justice has accepted – and so is now consulting on – the cost management recommendation. It has also indicated that it is giving thought to – but is not (yet) consulting on – the introduction of a fixed recoverable cost scheme for immigration and asylum cases in the Upper Tribunal. It has rejected – and so is not consulting on – the extension of the Aarhus Rules.
His 2017 report was not the first time that Sir Rupert Jackson had addressed the issues of cost in JR proceedings. In his 2010 report “Review of Civil Litigation Costs: Final Report” he had recommended the introduction of a form qualified one way costs shifting. As he somewhat ruefully observed in his 2017 report, that recommendation has never been formally rejected by the Government, but “it is probably realistic to proceed on the basis that[it] is not going to come”. He therefore made what he expressly described as “a modest proposal” – the extension of the Aarhus Rules – aimed at promoting access to justice. Sadly this was not modest enough for the Ministry of Justice.
The Aarhus Rules, which apply in environmental JRs, are intended to address the obligation under the Aarhus Convention that review procedures for environmental claims should not be ‘prohibitively expensive’. The way they work is through providing caps on liability for costs, both for claimants and defendants. Under Sir Rupert Jackson’s proposals, regime would be extended to all JRs where the claimant was an individual not in receipt of legal aid, would be optional and would be means tested. The cap on adverse costs liability would be (as under the existing Aarhus regime) £5,000 for a claimant (or £10,000 when claiming as or on behalf of a business) and £35,000 for a defendant. In putting forward this recommendation Sir Rupert Jackson recognised that it was imperfect but suggested that overall it would promote access to justice, striking:
“the right balance between (a) the need to protect the public purse and (b) the need to hold public authorities to account”.
The Ministry of Justice’s reason for rejecting the proposal is simple: it does not accept that there is any ‘issue’ with access to justice in JR cases. The suggestion is that the availability of legal aid, combined with the possibility of a claimant applying for a cost capping order, means that there is no problem here. Sir Rupert Jackson had, unsurprisingly, considered the availability of both legal aid and cost capping orders and had concluded that they were insufficient. The Ministry of Justice has not explained why he was wrong to reach that conclusion, but simply repeated an assertion that had already been made to him by Government lawyers when he was gathering evidence.
In his foreword to the consultation, the Lord Chancellor said:
“A fair and accessible justice system lies at the heart of our democracy. Ensuring that every citizen has recourse to civil litigation, where appropriate, is part of a just society”.
These are fine words, but not matched by action. Sir Rupert Jackson’s proposal to extend the Aarhus Rules to all JR claims would, albeit in a small – modest - way, have increased the ‘recourse’ individuals have to JR proceedings. It is a significant missed opportunity to have rejected the recommendation out of hand.