The government has reined in a proposal to restrict eligibility to apply for judicial review, but will require disclosure of the identity of anyone financially backing a claim, it announced today.
The Ministry of Justice has also backed down on proposals to pay lawyers working on the ‘permission stage’ only where permission is granted. The change will enable payment in meritorious cases that settle prior to permission being granted.
A ‘strong’ package of reforms announced today is designed to limit the number and length of cases, and their cost to the taxpayer, which it says works out at between £1,500 and £25,000 for each case the government defends.
The announcement follows a consultation, Judicial Review: proposals for further reform, which ran from September to November last year. It proposed the introduction of a test for ‘standing’, limiting entitlement to bring a judicial review to those with a direct interest in the case.
This would have removed the ability of campaigning groups to bring claims on behalf of individuals. This has now been dropped.
Legal aid will remain available for all cases with ‘merit’. The government has also abandoned its proposal to alter the availability of legal aid in planning cases.
But the government will require the details of anyone financially backing a JR to be disclosed, even if they are not a named party, so that costs can be fairly allocated.
The government says that in the past, backers have used individuals, and even set up new companies, to front JRs – meaning that any assessments by the court of the financial capacity of the applicant have not always been a fair representation.
Third parties who join in a JR case as ‘interveners’ will be made responsible to ‘pay their own way’, for example when a campaign group applies to become involved in a case already taking place between an individual and an authority.
At present other parties in the case can be ordered to cover the legal costs of the intervener. In future these third parties will also have to compensate other parties if they cause them to run up greater legal bills unnecessarily.
The use of protective costs orders (PCO), limiting a party’s costs liability in relation to the other side’s legal costs, will be restricted to ‘exceptional cases with a clear public interest’.
At present, the government says, PCOs can be used by claimants to make the defendant authority bear the legal costs regardless of the outcome of the case.
Where applicants have had their initial written JR application refused but want a ‘second chance’ oral hearing, they will have to have to pay towards the legal cost of the other side.
To speed up appeals in important cases, more claims will be able bypass the Court of Appeal and be determined by the Supreme Court.
The MoJ says the ‘strong’ package of reforms is designed to speed up cases and drive out ‘meritless’ claims which it says clog the courts and delay legitimate applications.
The number of judicial review applications more than doubled from 4,300 in 2000 to 12,600 in 2012, according to MoJ figures. However only 440 went on to a full hearing and of those, 170 went in favour of the applicant.
But the ministry accepts that in 2012 the vast majority of applications, more than 10,000, were for immigration and asylum cases, which since November 2013 have been transferred from the High Court to the specialist Upper Tier Tribunal, already reducing the number of case significantly.
The current changes follow a raft of earlier measures to curb JRs, implemented last year, including halving the time limit for applying in some cases from six to three months, threefold increases in fees and removing the right to an oral permission hearing where written applications are been ruled ‘totally without merit’.
Justice secretary Chris Grayling said: ‘Judicial review must continue its role as a crucial check on the powers that be – but we cannot allow meritless cases to be a brake on economic growth. That would be bad for the economy, the taxpayer and the job seeker, and bad for confidence in justice.
‘These changes will bring balance to the judicial review system, so justice is done but unmerited, costly and time-wasting applications no longer stifle progress.’
A Ministry of Justice press release said changes will be made later this year through secondary legislation or amendments to court rules.