Criminal Justice Bill ups the ante on judicial review reform

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Corporate Crime analysis: How will proposals in the Criminal Justice and Courts Bill affect future judicial review applications?

Sarah Fitzpatrick, barrister and associate director at Berwin Leighton Paisner, says lawyers must be prepared if they are going to keep pace with the reforms.

Original news - Criminal Justice and Courts Bill, LNB News 06/02/2014 21

A Bill to make provision about how offenders are dealt with before and after conviction; to amend the offence of possession of extreme pornographic images; to make provision about the proceedings and powers of courts and tribunals; to make provision about judicial review; and for connected purposes.

What are the most significant changes that will be brought about by the Criminal Justice and Courts Bill?

For practitioners working in the field of public law, the most significant parts of the Bill are undoubtedly some of the clauses in Pt 3 entitled 'Courts and Tribunals' and all of Pt 4 entitled 'Judicial Review in the High Court and Upper Tribunal'.

The proposed changes that relate to judicial review and more widely to the court process aim, we are told by the Ministry of Justice (MoJ), to 'tackle unmeritorious claims and unnecessary delays to the system'--the intention being to restrict the ability of objectors to use judicial review to hold up major developments. This aim tallies with the Government's wider objective of stimulating development, and housing development in particular, as an economic stimulus and to deal with the housing shortage.

What is the background to these changes?

The changes hail from the government's 'Judicial review--Proposals for further reform'(LNB News 06/09/2013 147) which was consulted on between September and November 2013. There were many critics who considered the government's proposals a direct attack on the rule of law, and some of the more controversial proposals have not been taken forward in the Bill, or have been watered down. Other proposals that did not require primary legislation to effect the change have already been implemented, such as the establishment of a specialist Planning Court within the High Court.

What is the likely impact on lawyers and their clients?

One of the most significant changes proposed by the Bill as originally published was cl 50 which sought to amend the Senior Courts Act 1981, s 31. Clause 50 provided that permission to bring a judicial review action must not now be granted if 'the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred'. However, the Lords voted (on 27 October 2014) to approve an amendment to cl 50 (now cl 83) proposed by cross-bench peer Lord Pannick so that it now reads that:

'[The High Court] may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and [...] If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court may refuse to grant leave.'

The introduction of judicial discretion into what was previously drafted as an absolute test may not therefore make the difference in practice that the government originally anticipated. As now drafted, the test essentially reflects what already happens in practice. The idea behind the provisions of cl 50 (as originally drafted) combined with cl 54(3) (now cl 87(3) which provides that the court may make a protective costs order (PCO) 'only if leave to apply for judicial review has been granted') appears to have been to make the permission stage longer and more expensive--so acting as a deterrent to potential applicants, with the permission stage potentially turning into a mini-hearing on the merits.

The MoJ is understood to be disappointed and is considering how it will respond when the Bill returns to the House of Commons. The other change proposed by cl 50 and amended in a similar way by the Lords was a proposal that relief in judicial review cases must be refused and damages must not be awarded if it was 'highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred'. Again the change from 'must' to 'may' in this test reflects what already happens in practice--albeit usually in the context of procedural defects in a decision. The change means there is likely to now be enhanced scope for arguing that, even where a decision is found to be flawed on substantive grounds, it is highly likely that the decision would have been the same, so relief or damages should be refused.

Other reforms to judicial review proposed in Pt 4 include:

Clause 85

Exposing people who are not a party to the judicial review action but who have financially assisted the proceedings, including perhaps friends, relatives and colleagues of claimants, to the risk of a costs award.

Clause 86

Discouraging contributions by interveners (such as charities, NGOs and others) by making them liable for costs, even when they make positive contributions to the courts' consideration of a particular legal problem (however, a further amendment approved by the Lords introduces judicial discretion into the question whether an intervener should be liable for a party's costs).

Clauses 87 and 88

A restriction on the use of PCOs, which critics have claimed will have the effect of 'limiting judicial review to the wealthy'. However, note cl 89 which dis-applies cls 87 and 88 to 'judicial review proceedings which, in the Lord Chancellor's opinion, have as their subject an issue relating entirely or partly to the environment'. In reality most planning cases will concern an issue that relates 'to the environment'.

The effect of these changes on lawyers and their clients remains to be seen, but an elongated judicial review permission stage, combined with the inability to obtain a PCO to provide protection from the costs of that stage might deter some from commencing unmeritorious or deliberately time wasting actions. Unfortunately for developers, challenges to planning permissions are unlikely to benefit from the PCO proposals, although the changes at the permission stage will still be relevant and might deter a few NIMBY objectors, although commercial objectors and special interest groups are still likely to press even unmeritorious or time wasting cases.

Other proposals of note in Pt 3 include:

Clause 62

Extends the scope for appeals to be made direct from the High Court or tribunals to the Supreme Court in cases where it is clear a case will not end in the Court of Appeal, so these cases should reach the Supreme Court more quickly. These changes are not limited to judicial review cases but apply to civil and administrative proceedings more generally. The proposal removes the requirement for all parties to consent to 'leapfrogging'. This provision is likely to benefit a few cases a year, but will not affect the speed of disposal of the majority of High Court and tribunal cases

Clause 66

Creates a new duty for a court which makes a wasted costs order to consider whether to notify a legal representative's regulatory body and/or the Legal Aid Agency. Wasted costs are awarded against legal representatives where the costs of litigation have been caused unnecessarily by their improper, unreasonable, or negligent conduct, and which it is unreasonable to expect the litigant to meet. While this clause is something that the legal profession needs to be aware of, this is unlikely to be a consideration for judges in the majority of cases--although it might create slightly more work for the regulatory bodies in question.

Are there any provisions that you think might have unforeseen consequences in practice?

Since a number of judicial review challenges now only benefit from a six-week period in which to bring a claim, and since the proposals appear to front load the permission stage, it may well prove challenging for applicants preparing a case which will need to be argued possibly more fully explaining why the outcome for the applicant would have been substantially different if the conduct complained of had not occurred.

Do you have any suggestions for how lawyers can deal with these issues?

Be prepared!

How do the changes fit in with other developments in this area?

The proposed changes to judicial review are part of a sustained government campaign to speed up the disposal of cases, and to weed out unmeritorious cases earlier in the process. There is a synchronicity in terms of the latest changes proposed and those already implemented. The only difference is that this time round the government is pushing the envelope in terms of improving the system, versus preventing access to justice--with many of those who use or form part of the system considering that some of the changes have gone a step too far.

Do you have any predictions for future developments?

Assuming the Bill is enacted before Parliament is dissolved, there are unlikely to be any further changes made or proposed to judicial review or court process by the current government between that enactment and the general election. A number of the current proposals refer to court rules being made which will provide the detail of the changes proposed. We may well see these before the dissolution of Parliament. The success of many of the proposals is likely to rest on that detailed drafting and how the courts interpret the changes.

This article was first published on Lexis®PSL Corporate Crime on 11 November 2014.

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