The Criminal Justice and Courts Bill, published this week, includes a number of provisions relating to reform of the judicial review system. The main highlights are:
- The establishment of a new planning court
- The ability to “leap-frog” appeals from the High Court and Upper Tribunal to the Supreme Court, in certain circumstances
- Details of circumstances that will result in refusal of permission to apply for Judicial Review
- A new permission stage has been introduced (in England) for challenges to planning decisions made by the Secretary of State
- Various costs provisions will also be introduced
You can read more details on each of the above points in the text below. Click through to read our previous comments, “Judicial Review – Proposals for Further Reform”, published alongside the Government’s response to its consultation.
The establishment of a new Planning Court
The Government’s response to consultation states that it is working with the Civil Procedure Rules Committee and senior judiciary to establish a new Planning Court in the High Court (rather than in the Upper Tribunal). The details of this are likely to come forward through secondary legislation and amendment to the Civil Procedure Rules.
The ability to “leap-frog” appeals from the High Court and Upper Tribunal to the Supreme Court
The bill introduces the ability to “leap-frog” appeals from the High Court and Upper Tribunal to the Supreme Court if a point of law of general public importance is involved in the decision and that:
- the proceedings relate to a matter of national importance or consideration of such a matter;
- the result of the proceedings is so significant (whether considered on its own or together with other proceedings or likely proceedings) that in the opinion of the judge, a hearing by the Supreme Court is justified, or
- the judge is satisfied that the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.
Circumstance that will result in refusal of permission to apply for Judicial Review
If the High Court or the Planning Court considers that it would be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, it must refuse permission to apply for Judicial Review. Even if permission is granted, the Court may refuse to grant relief in such circumstances. This should see the end of the type of application where only procedural defects in the issue of a permission are alleged.
New permissions for challenges to planning decisions made by the Secretary of State
A new permission stage has been introduced (in England) for challenges to planning decisions made by the Secretary of State. An application for leave must be made in the High Court within 6 weeks of the decision. This brings the position in line with that for JR.
Various cost provisions to encourage correct procedures and minimise unnecessary court costs
The legislation introduces a duty on the Courts to report legal representatives who are the subject of wasted costs orders (as a result of unreasonable or improper behaviour) to the appropriate regulator. This is intended to encourage legal representatives to follow correct procedures and act with due candour in litigation to prevent unnecessary costs being incurred.
The Court may not grant permission to apply for JR unless it considers that the claimant has (1) sufficient interest in the case, and (2) has provided the Court with information about the financing of the application. The information provided must set out the claimant’s ability to meet financial liabilities associated with the application. This provision is intended to prevent “non-parties” who are in fact funding the litigation avoiding meeting potential costs by setting up companies or using impecunious individuals to avoid the full financial risk of the claim.
Where an intervener to existing JR proceedings is granted permission to file evidence or take part in the proceedings, the Court will not be able to make an order for another party to pay the intervener’s costs and the intervener must pay any costs specified in the application that the Court considers have been incurred by that party as a result of his involvement in the proceedings. This amendment aims to make potential interveners aware of the financial implications of becoming involved in litigation.
The legislation also proposes changes relating to protective costs orders (PCOs). PCOs will only be able to be made if permission has been granted for JR so claimants will have to bear their own costs during the permission stage of the application.
However, the new rules do not apply PCOs relating to Aarhus Convention claims (environmental claims) which have been subject to the provisions of the Civil Procedure Rules since April 2013. Therefore, the majority of Planning JRs will not benefit from the new rules relating to PCOs.