Judicial review: May 2015 after the Criminal Justice and Courts Act 2015

Posted on Tue 26 May 2015

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As we await information setting out how the new Conservative Government aims to secure another £30 billion in cuts, this briefing reflects on judicial review. It explains how key changes to the judicial review regime - contained in the Criminal Justice and Courts Act 2015 - affect judicial review and may impact adversely on people wishing to pursue, or intervene in, judicial reviews.

So what is judicial review and does it matter?

Before looking at the changes introduced by the 2015 Act, it is useful to briefly reflect on what judicial review is. It is a type of court proceeding in which one or more judges reviews the lawfulness of a decision or action made by a public body. It is a legal procedure which can be used to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function. Key grounds for challenge include illegality, irrationality, procedural Impropriety or a breach the Human Rights Act 1998. Judicial review matters because it is an important legal tool for individuals or organisations who wish to challenge alleged public law breaches including breaches of the Public Sector Equality Duty.  However, as the Courts and Tribunals Judiciary website explains whilst it can be used to challenge ‘the way in which a decision has been made’ it may not deal with ‘the rights and wrongs of the conclusion reached’ which can ‘mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.’

The Criminal Justice and Courts Act 2015 and the impact on the judicial review regime

The Criminal Justice and Courts Act 2015 introduces important and extensive changes to the overall legal system and to judicial review (JR).  This Act received Royal Assent on 12th February 2015 and key provisions came into force on 13th April 2015.

The specific changes to the judicial review regime are set out in sections 84 to 92 of the Act. These new provisions, particularly sections 84 -89, have the potential to seriously undermine the previous JR regime by deterring applicants from pursuing JR claims and deterring third parties from intervening in these cases. The changes make it more likely that claimants will pay more costs, they also:

  • increase the risk that third party interveners will pay other parties’ costs;
  • change the rules on Protective Costs Orders so claimants will not know until after a case is given permission to continue whether the court will grant an order limiting the costs that they may pay
  • reduce the court’s discretion to award relief or a remedy if a case is upheld.

Unsurprisingly many charities have argued that these provisions will fundamentally undermine judicial review and the ability of claimants to challenge public bodies.

Criminal Justice and Courts Act 2015: Sections 84 – 90

  1. a.      Section 84: The Explanatory Notes to the Act explain that unless there is an exceptional public interest, the High Court or Upper Tribunal must‘ refuse a remedy or permission on an application for judicial review if it considers it highly likely that the defendant’s conduct in the matter in question would not have affected the outcome for the applicant.’
  2. Section 85: The court must be given information about the financial resources above a certain (as yet undefined) level - that are available to the party wishing to bring the judicial review .[1]
  3. Section 86: The court must take this information into account and consider making a cost order against any party identified in that information as providing financial support for the proceedings.
  4. d.      Section 87: Third-party interveners in judicial reviews may have to pay other parties' costs if certain conditions are met. Those conditions are set out in section 87(6): ‘a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent; (b) the intervener’s evidence and representations, taken as a whole, have not been of significant assistance to the court; (c) a significant part of the intervener’s evidence and representations relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the stage in the proceedings; (d) the intervener has behaved unreasonably.’
  5. Sections 88-89: Cost-capping orders will only be available after permission for a judicial review is granted, rather than before.[2]

Changes to the legal-aid regime, were the subject of some successful legal challenges to the relevant regulations. We must now wait to see how the courts interpret these new provisions and whether any successful legal challenges are made. For further information on the new regime please see the circular by the MoJ’s Criminal Law and Legal Policy Unit, the Local Government Lawyer, Out-Law, Wragge Lawrence Graham & Co and Justice. [3]

Leander Neckles is a free-lance equalities consultant.

[1] This section will require applicants to provide a wide range of financial information about their circumstances and the financial circumstances of those involved in, or backing their case.

[2] ‘A costs capping order is an order that removes or limits the liability of a party to the proceedings (whether only for the applicant or both the applicant and the defendant) to pay another party’s costs incurred in bringing or defending a judicial review. This type of order, as developed in case law, is commonly referred to as a Protective Costs Order.’ Sources: Para. 657, Explanatory Notes to the Act and the Law Society

[3] Circular No. 2015/01: Criminal Justice and Courts Act 2015 issued on 23/3/15 sets out the key Act’s key provisions and those provisions that came into force on 13/4/15.