Summary and Background Part 4 – Judicial Review
89.Judicial review is a process by which individuals, businesses and other affected parties can challenge the lawfulness of decisions, actions or inactions of the Executive, including those of Government Ministers, local authorities, other public bodies and those exercising public functions. On 6 September 2013, the Justice Secretary launched a consultation entitled ‘Judicial Review: Proposals for further reform’(19). The consultation examined proposals in six areas aimed at reducing the burden of judicial review. It closed on 1 November 2013.
90.This consultation followed an earlier consultation, ‘Judicial Review: proposals for reform’, which ran from December 2012 to January 2013 and set out some of the background and the Government’s concerns about the use of judicial review; the mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful. A number of procedural changes were made following that consultation and the Government’s response is available at https://consult.justice.gov.uk/digital-communications/judicial-review-reform.
91.The consultation in the autumn of 2013 put forward proposals for further reform on a number of key areas, including:
	how the courts deal with judicial reviews based on minor defects that would have made no difference to the final outcome;
	a number of proposals to rebalance the system of financial measures so that those involved have a proportionate interest in the costs of the case. These included a proposal to limit payment to legal aid providers for their work on an application for permission to cases where permission is granted by the court;
	measures aimed at speeding up appeals to the Supreme Court in important cases, provision for which is included in Part 3 of the Act; and
	a new specialist “planning chamber” for challenges relating to major developments to be taken only by expert judges using streamlined processes.  This builds on the “planning fast-track” process implemented in the High Court in July 2013.
92.The Government published its response to the consultation on 5 February 2014 setting out its intention to bring forward a package of reforms to judicial review. The response can be viewed at https://consult.justice.gov.uk/digital-communications/judicial-review. The reforms requiring primary legislation are provided for in this Act and are explained below.
93.Requiring the court to consider the likelihood of whether there would have been a substantially different outcome for the applicant - In judicial review cases the court has discretion over whether to provide a remedy (“relief”), such as a declaration clarifying the rights and obligations of the parties or ordering a decision to be retaken. Whether or not to grant relief is up to the court, and the courts have – regardless of this Act - refused to provide relief where there would have inevitably been no difference to the outcome even if the reason for bringing the judicial review had not occurred.
94.Section 84 modifies the existing approach (which was developed by the courts in case law) so that relief is not to be granted and permission to seek that relief is not to be granted where the court considers the conduct complained about would be highly likely not to have resulted in a substantially different outcome for the applicant, unless the court considers that it is appropriate to grant relief or permission for reasons of exceptional public interest. If the court relies on this exception, it must certify that it has done so.
95.Information about financial resources in the High Court, Court of Appeal and Upper Tribunal in judicial review cases in England and Wales – Under section 51 of the Senior Courts Act 1981 and section 29 of the Tribunals, Courts and Enforcement Act 2007, the High Court, the Court of Appeal and the Upper Tribunal respectively have wide powers in respect of awarding costs. This extends to the power to award costs against any person who is not a party to a case. This might include a person who, although not a formal party to a claim, provides financial backing to the claimant and is seeking to drive the litigation for their own purposes. Similarly, where a “shell company” is created to bring the judicial review, whilst the directors of the company are not parties, they may be both funding and driving the litigation so it may be appropriate to make a costs award against them. However, there is no general requirement for an applicant to reveal the source of the funding he or she is receiving for the judicial review proceeding which may mean that it is difficult for the court to identify against whom costs orders should be made.
96.Section 85 stipulates that where an applicant applies to the High Court or the Upper Tribunal for permission to proceed with a judicial review under the law of England and Wales, the High Court or Upper Tribunal cannot grant permission unless the applicant provides specified information about the financing of the judicial review. Section 86 provides that when making costs orders under section 51 of the Senior Courts Act 1981 and section 29 of the Tribunals, Courts and Enforcement Act 2007 the High Court, the Court of Appeal and Upper Tribunal should have regard to the information provided by the applicant and should consider making costs orders against those who are not a party to the judicial review.
97.Establishing two presumptions that interveners in judicial review cases in courts will pay their own costs and in certain circumstances any costs incurred by any other party because of their intervention – Under the Civil Procedure Rules any person who is interested in the issues being considered in a judicial review case can seek permission from the court to intervene in the case usually by filing evidence or making representations. At the end of the judicial review case the court will consider who should bear the costs that arise from any intervention. The courts have powers under section 51 of the Senior Courts Act 1981 to make an award of costs against a person who is not a party to a claim such as an intervener. Section 87 establishes two presumptions: first that those who intervene in a judicial review case will have to pay their own costs and secondly that, on the application of a party, if one of more of four specified conditions has been met, the intervener must pay any costs which their intervention, has caused that party to incur. Neither presumption would apply where the court considered there to be exceptional circumstances which would make it inappropriate.
98.Restricting the situations where a costs capping order can be made - A costs capping order limits the costs which a party may recover from another party at the conclusion of the case. In judicial review cases, a particular sort of costs capping order, known as a protective costs order, has been developed, in which costs are typically capped on an “asymmetric” basis, with the amount recoverable by a successful defendant from the applicant being capped at a lower level than the amount recoverable by a successful applicant from the defendant (which may not be capped at all). If such an order has been made and the applicant is unsuccessful in the proceedings to which the order applies, the applicant will only be liable to pay the successful defendant’s costs up to the amount specified in the order, and the defendant will have to cover any balance of its legal costs itself. When making an order capping the applicant’s costs liability, the court may also include a “cross-cap”, limiting (generally at an amount rather higher than the cap on the applicant’s liability) the amount of costs the defendant would be liable to pay the claimant if the claim succeeds. This means that an unsuccessful defendant is only liable to pay the successful applicant’s costs up to the amount in the order and the applicant would cover any remaining costs he or she had incurred.
99.Protective costs orders were developed by the courts, and the principles governing when and on what terms they will be made were re-stated by the Court of Appeal in the case of R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192(20). The Corner House principles provided for protective costs orders to be for exceptional circumstances in cases concerning issues of public importance. However, over time their use has widened. Sections 88-90 make provision for a codified regime, replacing the regime in case law, to govern the circumstances in which protective costs orders may be made in judicial review proceedings (the position in relation to costs capping in other civil proceedings remaining unchanged). Section 88 provides that costs capping orders in judicial review proceedings can only be made in certain circumstances. Section 89 provides that a court must have regard to the matters set out there when considering whether to make a cost capping order and what the terms of such an order should be. Section 90 enables environmental cases to be excluded from the codified regime provided for in these sections as such cases are governed by a separate regime arising from the Aarhus Convention(21) and the Public Participation Directive.(22)
100.Planning Proceedings - Planning legislation provides that certain planning-related decisions, orders and actions may only be challenged by way of statutory review in the High Court. The amendments made by section 91 and Schedule 16 require the permission of the High Court to be obtained before a challenge may be brought under specified provisions of planning legislation. The amendments made by section 91 and Schedule 16 also permit challenges to awards of costs in relation to planning and listed building decisions to be brought in the same way as a challenge to the substantive decision itself - namely under section 288 of the Town and Country Planning Act 1990 or section 63 of the Planning (Listed Building and Conservation Areas) Act 1990. Section 92 amends provisions concerning certain planning-related challenges to provide that the six-week period within which a challenge must be brought does not start to run until the day after the decision or other action which is the subject of the challenge.