Judicial review reform “worrying”

Public lawyers have criticised government proposals on judicial review, which include procedural defect reform and financial restrictions. 

The Ministry of Justice (MoJ) unveiled its response to its consultation, Judicial review: proposals for further reform last week. It proposes that parties will be able to bypass the Court of Appeal and go straight to the Supreme Court. On the financial side, the use of protective costs orders will be restricted to exceptional cases with a clear public interest, the identities of financial backers of judicial review will need to be disclosed, interveners will be required to pay their own legal costs, and applicants who take their case to an oral hearing will be asked to pay part of the defendants’ (usually the government’s) legal bill.

The Chartered Institute of Legal Executives (CILEx) said it was concerned that “the financial reforms will price claimants out of bringing a claim by increasing the potential costs if unsuccessful”. 

The MoJ has dropped plans to introduce a test for “standing”, which would have restricted eligibility to bring an application to those with a direct interest. This would have had the effect of preventing campaigning groups and charities from bringing claims on behalf of individuals. 

However, it has decided to reform the common law test of inevitability, under which the courts may refuse permission where the outcome would have been no different regardless of a procedural defect. Instead, a court will have a statutory obligation to refuse permission where it considers it “highly likely” that the procedural defect made no difference.

Charles Brasted, partner at Hogan Lovells, says this reform is “worrying”.

“You can’t always know at the permission stage how it would have been different, and if the procedure is wrong then that is a matter of public interest,” he says.

“The idea that there should be an absolute bar to proceedings is to confuse the question of merit with the core issue of whether the process is lawful, so that’s a difficult point and it is disappointing that the government has not listened. One has to wonder how judges will approach this.”