Power house

It is no surprise that the new coalition government has seized on the headline proposals put forward by Lord Justice Jackson's review of civil litigation costs.

The rebalancing of the claimant v defendant relationship through the abolition of the recoverability of conditional fee agreement (CFA) success fees and insurance premiums fits well with Conservative tub-thumping against an alleged 'compensation culture'. But there is one curious casualty in the Ministry of Justice's (MoJ's) plans to adopt the full package of reforms recommended by Jackson LJ.

In order to balance the effect of restricting success fees, the MoJ proposes the introduction of costs protection, given to claimants who are not conspicuously wealthy to protect them from substantial legal costs of defendant bodies in the event that their claim fails, via qualified one-way costs shifting (QOCS). So far so good.

But it has decided not to introduce this key countervailing factor in judicial review. Unlike small businesses and insurers in personal injury cases, state bodies will be able to recover costs from the citizen who unsuccessfully challenges them.

In the MoJ's 100-page consultation document (to say nothing of the eight accompanying impact assessments), only a few paragraphs are given over to a discussion of the funding of judicial reviews. Flimsy justifications are put forward for not introducing QOCS in judicial review, including the notion that some claimants are wealthier than smaller public authorities. This is of course no justification at all - the qualified element of QOCS would mean that such a claimant would not be protected in costs.

Another justification put forward was that QOCS would lead to a flood of unmeritorious claims, without any attempt to explain why this should be the case in judicial review but not in personal injury. This is all the more ponderous when you consider that unlike personal injury, judicial review has the built-in filter of the permission process to sift out unmerit-orious claims at minimal or no cost to the defendant.

Consultation responses have condemned these justifications as unsustainable. In the MoJ's response, it is notable that none of the original justifications are repeated. Indeed, in the one paragraph which touches elliptically on judicial review, no identifiable justification is given for its special treatment.

The Public Law Project (PLP) has written a formal judicial review pre-action protocol letter to justice secretary Ken Clarke, challenging the outcome of the MoJ's proposals on the basis that its reforms to the funding of judicial review have been introduced without proper thought, consultation or identifiable justification. The suspicion has to be that the MoJ has decided '“ either as a result of inter-departmental lobbying or of its own volition '“ to deter inconvenient legal challenges by giving public authorities special costs treatment.

The proposals will impede access to justice in a fundamentally important constitutional area, and will entrench and regress the UK's breaches of its international law obligations, particularly under the Aarhus Convention, for which the EC Commission is currently bringing proceedings.

PLP has no objection in principle to the introduction of the Jackson reforms and the restriction of conditional fees in judicial review. But it can see no justification for abandoning the recomm-endation of Jackson LJ to introduce QOCS in judicial review claims.

The MoJ must give fuller scrutiny to the proposals and give proper justification for any infringement of the constitutional right of access to the courts for judicial review. The MoJ's response is awaited.