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Grayling drops tougher ‘sufficient interest’ test, but goes ahead with other JR curbs

New restrictions on protective costs orders and interveners

6 February 2014

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Justice secretary Chris Grayling has announced that the government will not be tightening up the 'sufficient interest' test for bringing judicial reviews, but will be going ahead with other curbs.

Among the restrictions, outlined in a consultation paper launched in the autumn, would be limiting legal aid to cases granted permission by the court, although the Legal Aid Agency would have discretion to pay for 'meritorious' cases.

The first wave of judicial review curbs, including shorter timetable limits, came into force last summer.

In its response to the consultation, the MoJ said: "The government remains of the view that the taxpayer should not be paying for a significant number of weak judicial review cases which issue but are not granted permission by the court.

"The government considers that it is appropriate for the financial risk of the permission application to rest with the provider and to use the permission test as the threshold for payment."

The MoJ said in the response that the change would be implemented by secondary legislation in the spring of 2014.

Other restrictions are contained in the Criminal Justice and Courts Bill, published yesterday.

These include changing how the courts deal with procedural defects by amending the current test to ensure judicial reviews cannot proceed if they are based on those "highly unlikely" to have made a difference to the original outcome.

Under the bill, there would be a new framework for protective costs orders, which would only be available in non-environmental cases where there were "serious issues of the highest public interest".

The bill would establish a presumption that interveners in judicial reviews will have to pay their own costs and any costs they have caused to either party because of their intervention.

The scope for leapfrogging appeals to the Supreme Court would be extended in cases of 'national importance', and the consent of both parties would not be needed. Leapfrog appeals would be permitted from the Upper Tribunal, Employment Appeals Tribunal and Special Immigration Appeals Commission.

In a further change, parties would be required to provide information about how their judicial review challenge was funded.

In his foreword to the response, Grayling said: "To complement our streamlining of planning cases, I will also introduce a permission filter for appeals under section 288 of the Town and County Planning Act 1990 in order to weed out weak claims earlier. I do not, however, intend to remove those cases (or those under section 289 of the same Act) from the scope of legal aid altogether.

"Some of these measures may not be popular with those who benefit from the status quo, but I am confident that they support economic growth for our nation's future, promote fairness for the taxpayer, and protect access to justice for all."

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