Judicial review under attack: Solicitors, judges and barristers united in opposition

If there’s one thing right-wing Conservative MPs like less than legal aid, it’s probably judicial reviews. Justice secretary Chris Grayling has already taken at a swing at them. Shorter time limits and greatly increased fees were introduced last summer.

A few weeks later, the justice secretary announced that he wanted to press ahead with further restrictions, particularly a change to toughen up the ‘sufficient interest’ test on standing. Last week, following opposition from senior judges, the MoJ said in a consultation response that it would be dropping this proposal.

However, the restrictions that are going ahead have provoked worry and anger in equal measures from lawyers and judges. Legal aid would be limited to cases granted permission by the court, though the Legal Aid Agency would have a discretion to pay for pre-permission work in ‘meritorious’ cases.

The MoJ said this would be implemented through secondary legislation in th spring. Other restrictions, contained in the Criminal Justice and Courts Bill, would introduce a presumption that interveners pay their own costs and any costs they have caused either party as a result of their intervention.

There would be a new framework for protective costs orders (PCOs), which would be only available, in non-environmental cases, where there were “serious issues of the highest public interest”.

While they may have got their way on standing, the senior judiciary, including the Lord Chief Justice and Master of the Rolls, pointed out that meritorious cases may well settle before a permission hearing.

“The percentage may be high. If it is, this has important implications for the government’s proposals: it undermines the suggestion that a large number of weak claims are being issued, and indicates that the current procedures allow meritorious cases to
be brought swiftly to a conclusion.”

The judges said it was “of paramount importance to avoid introducing measures that will have the effect of preventing meritorious challenges”.

They said the use of PCOs was not widespread in areas other than Aarhus environmental claims and the consultation paper contained “no estimate of the magnitude of the issue being addressed”.

The judges added: “To the extent that PCOs are made, they function to protect access to justice.”

The Bar Council, in its response to the autumn consultation paper, complained that there were indications that judicial review was regarded as an “inconvenience” for the government and its economic growth agenda, and the proposals failed to recognise the “central role” it played in the constitutional order.

Kieran Laird, associate at Wragge & Co in Birmingham, said the changes would enable defendants to claim the costs of permission hearings, rather than just in exceptional cases.

“These hearings may become costly and lengthy. It might be in defendants’ interests to fight permission a lot harder than they normally would,” Laird said.

“There are some cases where defendants did not contest permission simply to save costs. Now defendants will be incentivised to have a go.”

On PCOs, Laird said defendants would welcome the presumption that where a PCO was granted, they would benefit from a cross-cap.

However, he said that the proposals to make interveners liable for other parties’ costs may deprive the courts of “wider evidence and a broader perspective”.

He added: “Charities and other interveners from theNGO sector bring a lot to cases, often leading to better conclusions.”

Andrew Lidbetter, partner at Herbert Smith, said the reforms represented a “direct and obvious attempt to discourage claimants from bringing judicial reviews”.

He said they would also send “a warning message to pressure groups, campaign groups or NGOs” accustomed to bringing proceedings in the public interest without costs risks.

“This is unfortunate as often reputable NGOs can bring a wealth of specialised knowledge and experience to the court on matters of great public importance, and their interventions are often welcomed by all parties,” Lidbetter said.

“However, since the court retains overall discretion on costs, it may be that in practice judges are reluctant to apply the presumption that interveners bear costs for which they are responsible.”

Phil Shiner, who leads the team at Public Interest Lawyers, said: “I am very concerned about not being paid if permission is refused. What will happen is that the Ministry of Justicewill throw everything at permission.

“We’ll go back to the bad old days of hearings of two to three days just about permission.”

Shiner described as “highly unhelpful” the proposals on interventions, which always helped the court.

“Liberty, Amnesty, Justice are all very careful to make sure their interventions assist the court,” Shiner said. “No-one has ever criticised an intervention in my 30 years of practice.

“Why on earth they should pay costs? The government just wants to kill these cases.”

 

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'A very worrying development'

“The courts are assisted by the expertise of interveners and already have costs sanctions.

“Under the CPR, they have to set out what they’re going to say before they get permission. They only get permission if they have something useful to say. There is already a filter mechanism in place.

“The costs proposals are a very worrying development. It will have a chilling effect on access to justice and disincentivise the NGO sector from sharing their expertise with the court in a way which generally benefit the public.

“Everyone agrees that this change is not evidence-based and there has been no massive growth in interventions.

“The fact that judicial review has extended far beyond its original concept is something to celebrate, in our view. There are so many powers the courts already have and exercise very judiciously, regarding costs, standing and the threshold for claims.

“Only a fraction of cases get permission in any case, and only a fraction go to trial. Loads of my cases settle pre-permission or pre-trial. The fact the Legal Aid Agency now has discretion to pay for that work in meritorious cases is likely to lead to all sorts of costs disputes with the agency. There will be satellite submissions and far more aggressive litigation.

“Most claimant lawyers do their best to avoid litigation. Now they will be forced to push things beyond permission.”

Gwendolen Morgan is an associate at Bindmans

 

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