The Ministry of Justice has issued a consultation on proposed reforms to the judicial review process, the procedure by which a decision of a public body may be challenged in the courts on the ground that it is illegal, irrational or subject to procedural irregularity. Of most significance are plans to reduce the time limit for bringing a claim and to remove the right to an oral hearing of the application for permission to bring the claim in certain cases.

The Current Procedure

Timing

At present, the claim must be submitted “promptly” and in any event within three months of the decision giving rise to the claim (although in cases involving the enforcement of an EU Directive, such as the need for an environmental impact assessment, the additional requirement of promptness no longer applies). The court has a discretion to extend the time limit if there is good reason.

Permission

The first stage of the procedure is to apply for permission from the court to make the judicial review application. Permission will not be granted unless there is an arguable case and the majority of applications fall at this preliminary hurdle. The application for permission is usually decided only on the basis of the documents submitted but, if permission is refused, the applicant has the right to have the matter reconsidered at an oral hearing and, if that is also unsuccessful, to request permission to appeal to the Court of Appeal. Each of these steps is likely to take several months.

Fees

There is a fee of £60 for the application for permission, with no extra fee for an oral hearing. A further fee of £215 is payable if permission is granted and the judicial review proceeds.

The Proposed Changes

Timing

For judicial review cases in relation to planning decisions, the Government proposes to reduce the time limit to six weeks from the date the claimant knew or ought to have known of the grounds for the claim. This will bring it into line with the time limit for a challenge under section 288 of the Town and Country Planning Act 1990 against a decision on a planning appeal or on the “call-in” of an application. Where there are multiple decisions or a continuing breach, the rules will be changed to make clear that time starts to run from the first and not the last. In contract procurement cases the limit is to be reduced to 30 days; no change is suggested for other cases.

Permission

It is proposed that there should no longer be a right to an oral hearing of the application for permission in two situations. The first is where there has been a prior judicial process involving a hearing (which includes any statutory inquiry or hearing) considering substantially the same issue as raised in the judicial review claim. The second situation is where the judge who considered the documents submitted determined the application to be “totally without merit”. In both cases the applicant would have the right to request leave to appeal to the Court of Appeal, and that appeal would be decided only on a consideration of the documents.

Fees

Under proposals made in 2011, the existing £60 and £215 fees are already set to be increased to £235 each. The suggestion now is to require that fee to be paid for an oral hearing of the application for permission (in cases where there would still be a right to an oral hearing), rather than only once permission is granted. In those cases no further fee would be payable for the substantive judicial review hearing.

Comment

The Government says the aim of the proposals is “to ensure that weak or frivolous cases which stand little prospect of success are identified and dealt with promptly at an early stage in proceedings, and that legitimate claims are brought quickly and efficiently to a resolution”. The proposals are likely to go some way towards achieving that aim by weeding out cases that clog up the system but are totally without merit. In the planning arena that is likely to be few.

Of more concern is the vagueness which would be introduced as to when the six week period commences. Currently the start date is the date of the decision giving rise to the claim but that would become “when the claimant knew or ought to have known of the grounds for the claim”. This could be a moving date depending upon even individual circumstances of the claimant or claimants.

A further concern is that six weeks is too short a period to prepare a judicial review application in a planning matter. Six weeks is a reasonable period for a challenge under section 288 because the applicant will already have been involved in the matter and will have all the relevant documents. But on a judicial review the applicant may not have all the necessary evidence to support the application and might, for example, need to make a Freedom of Information Act request to obtain the documents necessary to prepare the case. That can take four weeks (20 working days) in a straightforward case and often longer.

Whilst the introduction of a fixed time limit in place of the vague reference to promptness has some appeal, the time limit must be long enough to allow time for the applicant to prepare the case properly. Indeed a time limit that is too short may achieve the opposite of the Government’s aim by forcing applicants to turn to the court as a first, rather than a last resort. This was in fact a point made by Lord Steyn in his judgment in the House of Lords in 2002 in the case of R v. London Borough of Hammersmith and Fulham, Ex P Burkett. He was commenting on what he described as a misconception that, following observations made by Laws J a few years earlier in R v Ceredigion County Council, Ex p McKeown, “prompt” meant within six weeks. Lord Steyn quoted the following passage from Craig, Administrative Law, 4th ed, at p 794:

“The short time limits may, in a paradoxical sense, increase the amount of litigation against the administration. An individual who believes that the public body has acted ultra vires now has the strongest incentive to seek a judicial resolution of the matter immediately, as opposed to attempting a negotiated solution, quite simply because if the individual forbears from suing he or she may be deemed not to have applied promptly or within the three month time limit”.

The consultation is available at https://consult.justice.gov.uk/digital-communications/judicial-review-reform and closes on 24 January 2013.