Whitehall departments have accused lawyers involved in judicial reviews of inflating cost bills, according to a summary of government submissions to the Independent Review of Administrative Law.
Despite freedom of information requests by the Gazette, government departments have refused to disclose their full submissions to the review’s call for evidence. However a 21-page summary of responses submitted by 14 departments was published last week.
Costs proportionality is one of several themes commented on. The summary states: ‘Departments regularly drive down claimant litigation cost bills through negotiation, in some cases by over 40%, suggesting that in many cases there is inflation of costs. There appears to be little disadvantage to legal firms in inflating bills and going to costs assessment (they are awarded costs of doing so even if the final sum ordered by the court is closer to the department’s last offer than theirs).’
Law Society president I. Stephanie Boyce told the Gazette that no evidence of inflated costs has been provided. She said solicitors ‘are bound by strict professional and ethical standards and assess costs based on work done, with the court able to impose penalties if this is not done accurately and honestly’.
Whitehall departments also said the pro-forma approach of pre-action protocol letter templates published by campaigning organisations ‘invites an abuse of process’.
Among the organisations offering templates is Child Poverty Action Group. CPAG lawyer Claire Hall said: 'Pre-action protocol letters are a vital way to give government the opportunity to correct its own mistakes before starting litigation, ensuring that basic standards of good administrative decision making are adhered to and that families receive support to which they are legally entitled.'
Hall said surveys showed that 89% of expert welfare rights advisers who had used a pre-action protocol letter template – often after months of trying to resolve their client’s issues through other channels - achieved a positive outcome for their client. 'Departments would do better to focus on improving their own decision-making processes and learning from such cases than complaining about the operation of the rule of law,’ she added.
Jo Hickman, director of Public Law Project, a strategic litigation group, said: 'We all want an open and robust debate about judicial review, and it’s what the government claims to want too. This fudged summary from the lord chancellor is no substitute for genuine transparency about what government bodies - including No 10 - told the independent review. The Ministry of Justice could fix this simply by publishing all the submissions in full. There is no good reason not to do so.'
Meanwhile, London firm Bindmans has asked the ministry to extend the deadline for responses to its consultation on JR reform. The six-week consultation currently closes on 29 April. ‘Without a proper consultation, any implementation of the proposals may be fundamentally flawed and unlawful,’ the firm said.