Government's judicial review reforms will not reduce delays, say experts

Out-Law News | 23 Apr 2013 | 2:30 pm | 2 min. read

Changes to the judicial review process announced by the Government are unlikely to have the desired effect of preventing "cheap delaying tactics" and abuse of the system, experts have said.

Planning law expert Mike Pocock of Pinsent Masons, the law firm behind Out-Law.com, said that the Government must make the system even tougher if it is serious about reducing the number of "meritless" applications.

Among the changes announced by Justice Minister Chris Grayling are increased fees for seeking hearings in person, reduced time limits within which a challenge must be brought and a ban on applicants receiving a hearing in person if their initial application is ruled as being "completely without merit". The changes are expected to take effect in the summer.

"Judicial review should be used by people who have carefully considered whether they have proper grounds to challenge a decision," Grayling said. "We are changing the system so it cannot be used anymore as a cheap delaying tactic."

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 from the court before their case can be heard fully.

The Government said that judicial reviews would continue to play an important role in holding public sector bodies to account, but said that the changes would deal with "unnecessary delays in the system" and "weak or ill-conceived cases which are submitted even when the applicant knows they have no chance of success". According to figures from the Ministry of Justice (MoJ), the number of applications for judicial review rose from 6,692 in 2007 to 11,359 in 2011. However, just one in six were granted permission to proceed beyond the earliest stages, and only 144 were ultimately successful.

Following the MoJ's consultation, it has confirmed that it will increase the court fee from £60 to £215 for anyone seeking a hearing in person after their initial written judicial review application has been turned down. Applicants will not be able to seek a hearing in person if their application has been ruled as totally without merit. The time limit for bringing a judicial review of certain decisions will be reduced from the current three months to six weeks in planning cases and four weeks in procurement cases.

However, planning law expert Mike Pocock said that it was unlikely that challengers would be put off by the changes. The Government is separately considering whether it will increase the fee to make an initial written judicial review application from £60 to £235.

"We've seen an increased number of judicial reviews of planning decisions in recent years and reform of the process is necessary to remove the delaying tactics that clog up the system," Pocock said. "However, I'm not sure that these reforms will have the desired effect.

"Challengers are now generally better advised and are usually already operating within the new timescales to avoid issues over delay, so it's hard to see what major difference these new measures will make. As for the fees for hearings, the proposed level of £215 is negligible given the overall cost of the judicial review process and as such is unlikely to act as a deterrent to claimants seeking to prevent damages from taking place," he said.

"The changes are not significant enough to discourage the bulk of applications as the cost penalties are quite low," said Julian Sladdin, an expert in judicial review at Pinsent Masons. "However, I would suspect that many institutions, especially universities, will welcome the fact that the Government is taking some steps to try and make potential litigants think carefully before seeking judicial review, and in turn avoid significant cost and management time being eaten up in dealing with ill conceived proceedings."