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Judicial review of judicial review costs

3 May 2011

The Ministry of Justice is facing a judicial review over its reforms to judicial review costs in the wake of the Jackson report.

The Public Law Project (PLP) sent a letter before claim to justice secretary Ken Clarke last week, attacking the government’s decision to restrict conditional fees for judicial reviews without introducing qualified one- way costs shifting.

The PLP said it was not opposed “in principle” to ending the recoverability of success fees and insurance premiums in conditional fee cases, provided it was introduced in conjunction with the “balancing factors” recommended by Jackson, particularly costs protection for claimants.

Diane Astin, director of the PLP, said the MoJ’s decision not to implement Lord Justice Jackson’s proposals on costs protection for most claimants in judicial review claims had not been “thought through”.

She went on: “The proposed changes are likely to have a seriously detrimental effect on the ability of individuals and groups to challenge unlawful conduct by public bodies.

“The proposals for judicial review should have been consulted on properly and we urge the government to withdraw them pending a thorough consultation on the likely impact on access to justice.”

In its letter before action sent to the MoJ, the PLP said some of the most important judicial reviews in recent years were made possible by conditional fees, including Corner House No.1 and Corner House No.2.

The PLP said Lord Justice Jackson had also called for reform of the Boxall rule, which “effectively provides for a presumption of no order as to costs” where a defendant public authority concedes a claim.

The PLP added at the end of the letter that any legal proceedings would be brought under a conditional fee agreement and it invited the MoJ to agree to one-way costs shifting in advance.

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