Judicial review curbs could 'eradicate' interventions

Lawyers have warned that the government's latest judicial review curbs could put an end to interventions.

Adam Hundt, partner at Deighton Pierce Glynn, said making interveners in judicial reviews responsible for the costs incurred by their interventions could have the effect of "virtually eradicating" them.

"Charities will be put off intervening," Hundt said. "They're very nervous anyway, but, if there is any risk of a costs order, they won't do it. No trustee in their right mind would sign up for that.

"From the charities' point of view, they will not be able to give the courts the benefit of their expertise. From the court's point of view, the result is equally bad.

"If a case raises an issue of wider importance, the government will be able to give its perspective on the implications without challenge."

Meanwhile, in a blog for the UK Constitutional Law Association, barristers Ben Jaffey and Tom Hickman, from Blackstone Chambers, said that the costs proposal, set out in clause 53(4) of the Crime and Courts bill, would "bring to an end public interest interventions" in judicial review proceedings below the Supreme Court.

Jaffey and Hickman said intervening parties would not intervene if there was a significant risk of an adverse costs award since they "most often can't pay for their own legal team" who "frequently act pro bono".

They went on: "Many will only intervene if the court grants them costs protection in advance, which it would be prohibited from doing if the bill is passed in its present form. This is in effect a disguised prohibition on NGO intervention, achieved again through the indirect route of financial disincentives."

Hundt said he was also concerned by the proposed restriction on legal aid for judicial reviews which were not granted permission, unless they were later judged to be 'meritorious'.

"The government thinks we issue unmeritorious cases right, left and centre," Hundt said. "In reality we've been facing increasingly tough and erratic decision-making from the Legal Aid Agency. I would be surprised if it doesn't make life tougher."

Hundt added that codification of the law on protective costs orders could "significantly curtail" the ability of organisations and individuals to bring litigation in the public interest. He said the existing approach, based on case law, gave the courts flexibility to take into account individual circumstances.

Jaffey and Hickman concluded: "There is no doubt that judicial review procedure can be improved, incentives can be rebalanced, and more can be done to ensure that strong cases of government abuse of power proceed whilst weak cases do not. "But the government's reform proposals are not properly directed at these questions and are instead directed at seeking to restrict access to judicial review and to load the dice in the favour of defendants."

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