Out-Law / Your Daily Need-To-Know

Lawyers warn of potential "chilling effect" of judicial review reforms on public authority challenges

Out-Law News | 24 Oct 2014 | 3:28 pm | 3 min. read

Tougher costs rules which would apply to those seeking to challenge the decisions of government and other public bodies in the courts in England and Wales could have a "chilling effect" on legitimate challengers, lawyers and barristers have claimed.

The three biggest legal professional bodies in England and Wales have asked the House of Lords to oppose the changes when the Criminal Justice and Courts Bill is debated there this week. The Bar Council, Law Society and Chartered Institute of Legal Executives (ILEx) said that the changes would restrict judicial review applications only to "risk takers with deep pockets".

"If a government department or local authority did something you thought was unlawful, like stop your business from trading, close your mother's care home or relocate your child's school, what would you do?" said Nicholas Lavender QC, chair of the Bar Council, which represents barristers in England and Wales.

"Judicial review is an important tool to stop dodgy decision-making by public authorities. It is fundamental to our system of justice and the rule of law that members of the public, including the weakest and most vulnerable, have an effective means of scrutinising and checking executive power," he said.

However judicial review expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law.com, said that not reforming the current system could itself create barriers to justice for those with legitimate claims.

"Plans to tighten up judicial review will always be controversial," he said. "Public law challenges by their very nature are seen as an integral part of stakeholders' rights to hold public bodies to account."

"While there is a need for the government to ensure that access to justice is secured, it also needs to ensure that any reformed system is robust enough to effectively filter out ever-increasing numbers of ill-thought through and vexatious claims," said Sladdin. "These are themselves a barrier to justice: they place a significant strain on the Administrative Court's already over-stretched resources, creating consequent delays in the determination of meritorious claims."

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 has introduced a number of reforms to the judicial review process over the past year. These have included the introduction of stricter time limits for applications for judicial review of a planning or procurement decision, and ending second chance hearings in cases ruled "totally without merit" by a judge. The reform programme was triggered by the huge growth in the number of judicial review applications made to the courts, the vast majority of which were unsuccessful.

The latest proposed changes are intended to ensure that those challenging the decisions of public bodies faced a "fair level of financial risk", according to the government. They include limiting the use of protective costs orders (PCOs) in judicial review cases, making applicants who take weak cases to a second chance hearing pay some of the other side's legal bills, and requiring the name of any party financially backing a case to be disclosed even if that party is not named in the application.

However, the legal professional bodies have claimed that by restricting the use of PCOs until permission to proceed was granted, challengers would not have the certainty of limits on how much of the other side's costs they would be required to pay if unsuccessful until after intensive preparatory work which in itself attracted costs had been done by lawyers. This would discourage all but the wealthiest challengers from pursuing judicial reviews in the first place, they said. Judges would also have to consider making cost orders against friends, family or community members who might be in a position to help the challenger financially, they said.

The bodies also criticised proposed changes which would require third party 'interveners', such as charities and NGOs, to pay costs and so deter them from providing expert advice and guidance in judicial review cases. Amendments to the bill proposed by Lords Pannick, Woolf, Carlile and Beecham would allow judges discretion to decide whether these interveners should have to pay costs or whether their costs should be repaid depending on the circumstances of the case, they said.

"Expert organisations, including charities and NGOs, do not wade into judicial reviews for fun," said Andrew Caplen, president of the Law Society. "The judge must first give them permission to make an intervention, and they do so because their expertise helps judges make more informed decisions. Making interveners liable will have a chilling effect on organisations who do this important work at their own expense."