Grayling outlines second wave of judicial review curbs

Justice secretary Chris Grayling has outlined a second wave of planned judicial review restrictions. These involve restrictions on who can apply and who can intervene in cases, and on the costs they can recover.

Shorter timetables for applying for judicial review in planning and procurement cases and other rule changes came into force on 1 July this year.

Later that month, the justice secretary warned that further curbs were on the way, including replacing the 'sufficient interest' for applicants with a stricter test.

Adam Hundt, partner at Deighton Pierce Glynn, said changing the 'sufficient interest' test would "most obviously" have an effect on charities and campaign groups.

In the latest consultation on judicial review, the MoJ put forward various options for a new test, including extending the existing legal aid rule, which requires a 'direct interest'.

The MoJ said the change, which could only be made through fresh legislation, raised the question of whether there should also be limits on third parties and interveners.

In an isolated concession, Grayling said the Legal Aid Agency (LAA) would have a discretion to pay for 'meritorious' applications for permission, even if they were unsuccessful.

Under his original proposals, part of the Transforming Legal Aid consultation paper, it was proposed that only successful applications would get legal aid.

Hundt said it would be better if the LAA gave its decision in advance rather than at the end of the case, and the concession should be seen against the background of "a wide-ranging attack on judicial review across the board".

He said this included restrictions on judicial reviews linked to the public sector equality duty and on the use of protected costs orders.

Hundt warned that if planning cases were transferred from the Administrative Court to an expanded Land and Planning Chamber, "nobody could take the financial risk of litigating" because of the lack of protected costs orders.

The MoJ said the Lands Chamber already had the power to hear judicial reviews and that specialist High Court judges could be deployed in the chamber along with current judges with expertise in planning law.

The MoJ said the creation of a specialist planning chamber was "likely to reassure developers (both national and international) that any challenges will be resolved quickly".

Officials asked whether there should be restrictions on the ability of local authorities to challenge decisions on "nationally significant infrastructure projects in England and Wales" unless they were applying for planning permission.

"Government bodies could still influence and challenge relevant projects through routes other than judicial review", they said.