Judicial review reform

The Ministry of Justice (MoJ) is to scrap oral re-hearings for judicial reviews in many cases, and charge £215 fees for those that go ahead.

Last month, the prime minister said legal challenges were stalling building projects and the rise in number of “hopeless” applications was hindering economic growth. There were 11,200 applications last year. However, roughly two-thirds relate to immigration cases.

Launching the MoJ’s consultation last week, justice secretary Chris Grayling said judicial reviews were sometimes used for “PR purposes”, stating: “Often the mere process of starting a judicial review will generate a headline.”

The consultation proposes:

• scrapping oral re-hearings where the case “has already had a hearing before a judge on substantially the same matter”, or where the application for permission has been ruled “totally without merit” by a judge on the papers;
• introducing a £215 fee for oral re-hearings (potentially rising to £235), which complements separate proposals for raising High Court and Court of Appeal fees under which judicial review fees would rise from £60 to £235 for applications and from £215 to £235 for a hearing;
• reducing the deadline from initial decision to application from three months to six weeks in planning cases, and from three months to 30 days for procurement appeals; and
• clarifying the point when the time limit starts for cases based on a continuing issue or multiple decisions.

Charles Brasted, Of Counsel, Hogan Lovells, who specialises in commercial judicial review and public law disputes, says putting up fees in order to reduce the number of claims was “uncomfortable”.

“It raises questions about access to justice, human rights and the Aarhus Convention.

“In other areas, it looks like they are bringing the time limits into line with the planning regime. Will it make things more efficient—I’m not sure that’s true. The time limit doesn’t affect the ones clogging up the courts, which are immigration and prison claims. The number of planning and procurement cases is quite small.

“From our perspective, the change of most note is the idea of scrapping the right to an oral re-hearing. We come across cases where permission has been refused on paper and is allowed on the oral re-hearing.

“I think it would be difficult to say this is a clear breach of access to justice. But what is it about that aspect of the current system that justifies reform? There are cases where that extra step makes a difference, so it is potentially significant.”

Currently, planning JRs must be brought “promptly”. Brasted says there are areas where “promptly” would have allowed more time than the proposed deadlines. “Claims may be less well formulated and therefore less difficult to process. Our experience about claims brought by local environmental groups is that they evolve over time and may initially be quite ill-formulated.”

The consultation, Judicial Review Reform, runs until 24 January.