Reforming judicial review

The Ministry of Justice (MOJ) published detailed proposals for reform of judicial review procedure (https://consult.justice.gov.uk/digital-communications/judicial-review-reform/supporting_documents/judicialreviewreform.pdf) on 13 December 2012, with a consultation period running until 24 January 2013. Whether or not the need for reform was so urgent that it was necessary to run the consultation through the Christmas holiday is a matter for debate.

My last article discussed the government’s initial announcement of reform of the procedural rules, and considered the justification provided by the prime minister and the MOJ for those reforms. The new paper includes “evidence” of the need for reform. Readers will judge for themselves, but in my view that evidence is unconvincing. The statistics presented are selective and there is no real attempt to substantiate the suggested link between the number of judicial review applications made and a negative effect upon economic growth.

The main points of the proposed reforms are:

Time limits

Time limits for bringing a judicial review claim will be shortened, but only in particular areas. Any proceedings related to the Public Contracts Regulations 2006 – public procurement – will be subject to a 30-day time limit. Judicial review challenges to planning decisions will be subject to a six-week time limit, in line with the existing limit for statutory challenges to planning appeal decisions, and challenges to decisions on major infrastructure consents.

The MOJ consultation expressly raises the question of whether this will provide sufficient time for parties to fulfill the requirements of the pre-action protocol, and whether the courts’ powers to allow an extension of time would be sufficient to ensure access to justice was protected.

There is however no discussion of the ‘promptness’ requirement and in particular whether it should be dispensed with in the light of recent Court of Justice and Court of Appeal decisions, or whether a reduced time limit should be accompanied by removal of the promptness requirement. There is, for example, no promptness requirement in statutory challenges to a planning appeal decision, where the time limit is six weeks and it cannot be extended by the court.

Additionally, the MOJ proposes changes to CPR Part 54.5, to make clear that any challenge to a continuing breach, or to multiple decisions, should be brought within three months of the first instance of the decision which is challenged, rather than from the last or latest incidence of a challengeable decision. It remains to be seen whether a change to the rules can be framed in such a way that satellite litigation on this issue can be minimised.

Applying for permission

In cases where the matter raised by the claim is one which is substantially the same as that which has been the subject of a prior judicial hearing, and the claimant has been refused permission on the papers, the claimant’s right to renew the permission application at a hearing would be removed. Any appeal to the Court of Appeal on the question of judicial review permission would also be on the papers only.

The Contempt of Court Act 1981, and the Freedom of Information Act 2000, define a court as including any tribunal or body exercising the judicial power of the state. This is proposed to be the basis for determination of whether there has been a prior judicial hearing.

The MOJ proposes that it will be for the defendant in a claim to make the case that there is no right to an oral renewal in the Acknowledgement of Service on the basis that the prior judicial determination issue is engaged. On the face of it, the question of whether the issue raised in the judicial review is “substantially the same matter as in a prior judicial hearing” is also likely to give rise to continuing litigation in itself, and may not lead to fewer hearings overall as the government seems to hope will be the case.

It is also proposed that where an application for permission to bring judicial review has been assessed by a judge as “totally without merit”, there should be no right to ask for a further hearing on the permission issue. This approach would be consistent with the power of the court under CPR 52.3 para 4A, in relation to appeals: “where a judge…refuses permission to appeal without a hearing and considers that the application is totally without merit”, the court may order that there be no further hearing on the question of permission to appeal.

Fees

The MOJ proposes to introduce a fee for an oral renewal hearing. At present there is a one-off payment for an application for judicial review permission, and a further fee for a substantive hearing. The fee for a renewed permission hearing is proposed to be set at the same level as the fee payable for a full hearing – approximately £240. Again, the government hopes that the introduction of a fee for a renewal hearing will discourage applicants with weak cases from continuing. The case which is made in government’s proposals suggests that the MOJ is concerned as much with recouping more of the cost of determining judicial review applications – which might be seen as a better reason for raising court fees – as it is with minimising the deleterious effects of an excessive number of judicial review applications.

There are fifteen specific questions upon which the MOJ invites responses, including whether there are any other reform proposals which should be considered. Responses must be received by 24 January 2013.