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Out-Law News 3 min. read

Government plans to "limit" those who are able to apply for a judicial review

The Government has proposed further reforms to the judicial review process in order to prevent those who do not have a direct interest in a case from exploiting the process for "campaigning or publicity purposes".

It is consulting on a number of further changes, following the reduction of time limits for certain types of claim and end to "meritless" 'second chance' hearings introduced last month. Increased court fees for those seeking an oral hearing after an initial judicial review application have been turned down but will be introduced shortly.

Justice Secretary Chris Grayling said that the proposals would prevent "needless delays" to projects of economic benefit.

"We want to make sure judicial review continues its crucial role in holding authorities and others to account, but also that it is used for the right reasons and is not abused by people to cause vexatious delays or to generate publicity for themselves at the expense of ordinary taxpayers," he said.

Judicial review is a process through which individuals, businesses and other affected parties can challenge the lawfulness of decisions or actions of public bodies and those exercising public functions. Only those with "sufficient interest" in a decision can challenge it, and they must first obtain permission for the court before their case can be heard fully.

The number of applications for judicial review more than doubled from 4,500 in 1998 to 12,400 in 2012, according to Ministry of Justice (MoJ) figures. However, in 2012 just one in six was granted permission to proceed beyond the first consideration of the application. In 2011, 422 cases went on to a final hearing without being withdrawn or settled, but only 163 of those were decided in favour of the applicant.

Among the changes being considered by the Government is a change to the test for 'standing', which governs whether a party is entitled to bring a judicial review. Current rules require that the party bringing judicial review has a "sufficient interest" in the matter, which has been interpreted by courts as including cases where it is in the public interest for an issue to be examined. Although this is necessary under EU law and the Aarhus Convention for cases which raise environmental issues, the Government said in its consultation that the current test is too broad and allows judicial reviews to be brought for reasons of campaigning or publicity.

The consultation explores a number of alternative tests for standing that could be applied in judicial review cases, such as the existing tests under EU law or the Human Rights Act which require a "more direct" interest in the case. Any of these would require changes to legislation. The Government does not intend for a new test to require "actual damage or an interference" to have occurred, and would continue to allow a "potential future interest" to be sufficient for the purpose of establishing standing.

Other changes proposed by the consultation include giving the courts more power to dismiss cases which relate only to procedural issues, assuming that rectifying the flaw would have made "no difference" to the original outcome; and restricting the use of judicial review for breaches by public bodies of the public sector equality duty. The Government is also seeking views on "rebalancing financial incentives" in order to prevent the pursuit of "repeated and unmeritorious claims" at taxpayer expense. This could include restricting the availability of legal aid in judicial review cases and changing the rules around which party has to cover costs, amongst other proposals.

Judicial review expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law.com, said that although the proposals would likely be "extremely controversial", reform would be welcomed by public sector bodies and even companies seeking to bring judicial review claims.

"The potential for litigants to have a direct interest in a decision and to be subject to significant costs risks if unsuccessful will be regarded by many individuals and pressure groups as further restricting their access to justice," he said. "However, the need to re-address the balance between allowing greater freedom for aggrieved parties to seek judicial review against the time and cost of responding to ill-conceived and vexatious claims is long overdue."

"The changes are also likely to be welcomed by corporate entities bringing complex, high profile and commercially important administrative court challenges as reducing unnecessary and vexatious applications and the potential extension of 'leapfrog' appeals to the Supreme Court in significant cases gives them a greater prospect of such matters being dealt with expeditiously," he said.

The consultation, which also deals with significant changes to judicial review procedure in planning cases, is open until 1 November.

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