The government's controversial judicial review reforms have been enacted into law. Our public law experts take a look at the changes and what they will mean.
We have commented previously on the government's proposals to reform judicial review. The final reforms have now been enacted into law, in an attempt to tackle what the government says to be the high number of costly and spurious judicial review claims.
The changes are intended to allow the court's resources to be better applied to cases in which a difference to the outcome is more likely. They are also intended to allow fairer sharing of the costs of the judicial review process, so that less of the burden falls on the taxpayer.
The Criminal Justice and Courts Act 2015 (the CJCA), which contains the reforms, received royal assent on 12 February 2015. A number of its provisions amend the Senior Courts Act 1981 (the SCA) and a number of changes to the Civil Procedure Rules (the CPR) have also been made to implement the reforms.
Below, we look at some of the key reforms to the law of England and Wales; now passed into law.
Substantially different outcome
Sections 84(1) to 84(3) of the CJCA introduce new sub-sections into section 31 of the SCA.
By the new section 31(2A) of the SCA, in considering applications for judicial review the court will be required to refuse to grant relief if it appears to the court to be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred. The court's previous discretion to consider what justice requires in the particular case is removed.
Here, the conduct complained of is the conduct (or alleged conduct) of the defendant which the claimant claims justifies the intervention of the court in judicial review proceedings.
At the permission stage, when the court is considering whether or not to grant permission for a judicial review application to proceed, the court may consider whether the outcome for the claimant would have been substantially different if the conduct complained of had not occurred and it will be required to consider that question if the defendant asks it to (see section 31(3C)). If, having done so, the court considers that the outcome would not have been substantially different, it must refuse permission (see section 31(3D)). The court may order a permission hearing to hear submissions on the issue.
The new legislation contains an exception; the court will be able to disregard the above requirements (both in relation to the granting of relief and at the permission stage), if it considers that it is appropriate to do so for reasons of exceptional public interest (see sections 31(2B) and 31(3E)). No guidance has yet been given on what may be deemed 'exceptional public interest'.
Provision of information about financial resources and use of that information
In an attempt to address concerns about how judicial review applications are funded, section 85 of the CJCA amends section 31(3) of the SCA to provide that the court is required to refuse permission to apply for judicial review, unless the claimant has provided the court with specified information about the financing of the claim.
The specified information will be set out in 'rules of the court', which are not yet publicly available. However, the information will include information relating to the source, nature and extent of the financial resources available, or likely to be available, to the claimant to meet liabilities arising from the claim. Sources of financing over a specified level will need to be identified. If the claimant is a body corporate and unable to demonstrate that it has financial resources available, information required will include information about financial support available from its members.
Section 86 of the CJCA provides that when the court is determining who should pay the costs of the judicial review claim (and to what extent they should pay costs), regard must be had to the information about the financing of the proceedings which has been provided.
Section 86 also requires the court to consider whether costs should be paid by a person who is not a party to the claim, but has been identified in the information as someone who is providing financial support in relation to the claim, or as someone who is likely to be able to do so.
Interveners and costs
Section 87 of the CJCA requires a party which is granted permission to be joined as a party in a judicial review claim (an intervener) to meet its own costs, unless there are exceptional circumstances that warrant those costs being met by another party.
The changes for interveners go further. If the court is satisfied that certain conditions are met, it is required to order that the intervener meet the costs incurred by the parties as a result of its intervention. These conditions include where the intervener has (in substance) acted as the principal claimant or defendant, where the intervener's evidence and representations have not been of significant assistance to the court or where the intervener has acted unreasonably.
Costs capping orders
A costs capping order, also known as a protective costs order (or PCO), can currently be made before permission to apply for judicial review has been granted. A costs capping order will limit the amount of costs that a claimant will be required to pay if the claim is unsuccessful.
Sections 88 to 90 of the CJCA provide that the court may only make a costs capping order once permission has been granted for a judicial review claim to proceed. This means that a claimant's costs liability could be far greater than was previously the case - significant costs could be incurred before an order can be put in place.
Further, the CJCA introduces a statutory test which the court must apply before making any costs capping order. Such an order may only be made where the claim is a 'public interest' claim (further defined in the legislation) and where, in the absence of an order, the claimant would withdraw from the claim (and it would be reasonable for the claimant to do so).
The CJCA makes provision for the new rules around cost capping orders to be disapplied in relation to environmental claims (which fall under the Aarhus Convention and are subject to a separate regime).
Commencement of the changes
The changes introduced in the CJCA (and the CPR) relating to the substantially different outcome will apply to all claims in the High Court issued on or after 13 April 2015 and the changes relating to interveners will apply to all claims in the High Court and the Court of Appeal issued on or after that date. Neither change will apply to existing claims. The commencement date for the other changes has not yet been published.
Comment
In our previous alert on these reforms, we expressed concern about the damage that some of the proposals could do to the effectiveness of judicial review as a check on executive action.
The area with potentially the greatest impact across judicial review continues to be the limit on the availability of judicial review where the outcome would not have been substantially different if the conduct leading to the grounds of challenge had not occurred.
This change is likely to deter applications for judicial review which amount to a procedural challenge and are being made as a delaying tactic, with no real prospect of a different outcome. Such claims will be likely to be refused permission (as the government intends). For many other claims, the change is likely to lead to greater time and expense at the permission stage, as this issue is argued in detail by the parties.
But the areas of ambiguity in the new provisions, flagged in our previous alert, have not been resolved. The intention of the provision was to deal with procedural failings (as shown by the example in the Explanatory Notes to the CJCA), but why does the provision itself not make this clear? What happens if the claimant is a body (such as a non-governmental organisation), which is not directly impacted by the outcome?
It is clear that the courts have lost a significant area of their discretion in determining when justice requires that a claim should proceed, but the precise extent of the change is likely to be the subject of detailed consideration by the courts themselves. We note that the courts are not afraid to give serious consideration to the proper meaning of primary legislation which impacts on fundamental constitutional principles, as this change clearly does (see the recent Supreme Court decision in R (Evans)) v Attorney General [2015] UKSC 21).
From a more practical perspective, in responding to these new rules, any public body should impose a discipline on itself to consider from an early stage where a judicial review claim is contemplated whether it will be able to rely on this provision and what reasons it would give for doing so.
The public body should consider the case for arguing that the outcome would not have been substantially different but for the conduct complained of and be ready to request that the court consider its case.
Potential defendants should also engage with this issue at the pre-action stage and ensure any response to a letter before claim addresses the issue. If the letter can make a case that there would be no substantially different outcome, this can be put before the court if a claim is ever brought.
The new financial information provisions may discourage those third parties who may have previously been willing to fund a claim (whether openly or otherwise) and may quell the increasing tendency of the incorporation of companies solely to bring a judicial review claim (see, for example, R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662). The possibility of costs orders being made against the backers of a claim will be serious food for thought.
Potential interveners will also need to give serious consideration to their participation in a judicial review claim. While it is already rare that interveners and other interested parties will be awarded their costs, the increased risk of costs orders against them may cause them to think twice about intervening. In some cases, there may be other options; for example offering witness and other evidence to be put forward by a claimant or defendant in support of a particular case.
We wait to see whether the implementation of the CJCA will, as the government hopes, result in fewer judicial review claims being brought. The changes may well raise doubts for potential claimants and lead to more cases being refused permission. However, as noted previously, the changes around substantially different outcome can only foster a perception that public bodies can get away with cutting corners in decision-making. This may lead to more poor decisions and could inadvertently increase the number of judicial review challenges which are brought.
And what about after the general election? In recent weeks, the shadow justice secretary has confirmed that, under a Labour government, all of the judicial reforms contained in the CJCA would be repealed. However, even excepting the uncertainty of the outcome of the election, by then much of the CJCA will be in force. Constitutional matters are rarely the priority in a new Parliament and it seems likely that we will get to see the impact of (at least some of) these reforms in the very near future.