Government plans to reform judicial review procedure

The Government has now published its response to the consultation on reforming the judicial review process that was issued in December 2012.  Despite admitting that most respondents opposed the proposals and criticised the consultation process, the Government is pressing ahead with reforms that it considers are necessary to target large numbers of “weak, frivolous and unmeritorious cases”.

Rationale for reform

The proposals have been prompted by the increase in the number of judicial reviews in recent years and a concern that judicial review is slowing down the decision making process and adding to costs and uncertainty which can jeopardise the financial viability of planning and infrastructure projects.  The Government’s reforms target what it views as the weakest claims so that court resources can instead focus on genuinely arguable claims. 

The reforms have three aims: 

• to discourage claimants from bringing frivolous and meritless claims including those brought for PR purposes or as a device to cause delay; 
• to ensure that any claims are brought promptly; and 
• to ensure that frivolous and meritless claims are filtered out at an early stage.

The Government plans to introduce these procedural reforms as soon as possible and insists that the reforms will not prevent those with properly arguable claims from having them heard.

The proposals

Reduction of time limits for commencing judicial reviews of planning and procurement decisions

The current general time limit for seeking judicial review of a decision is three months. The Government intends to shorten these time limits to: 

• six weeks for challenges to planning decisions, in line with the limitation period for statutory challenges under the Town and Country Planning Act 1990; and 
• 30 days for challenges to procurement decisions, in line with the limitation period under the Public Contracts Regulations 2006.

The Government argues that the current time limits bring uncertainty and mean that developments and project completions are unnecessarily delayed until the time for bringing a judicial review has passed. The new shortened time limits are intended to bring certainty and minimise delays following planning or procurement decisions.

The Government accepts that reducing time limits makes it difficult for parties to follow the Pre-Action Protocol procedure.  The reforms therefore seem at odds with its promotion of alternative dispute resolution and may result in claims being issued earlier than they might have been to avoid missing time limits.

Introduction of a new, additional fee for renewal of permission applications to an oral hearing

Currently, if the court refuses an application for judicial review on the papers, a claimant has an automatic right to renew their application at an oral hearing without paying a further fee on top of the £60 they pay to issue their judicial review claim.

In order to make claimants “pause and reflect” if their application has been refused on paper, the Government proposes to make claimants pay an additional £215 to renew their application to an oral hearing.

This new fee forms part of a wider reform of fee structures in civil litigation which also includes proposals to increase: 

• the initial fee for issuing a judicial review claim from £60 to £235; 
• the substantive hearing fee from £215 to £235; and 
• the fee for permission to appeal to the Court of Appeal from £235 to £465.

It seems unlikely that the fee increase would deter those who are publicly funded or are already incurring the costs of legal representation, and opponents argue that fee increases therefore represent a barrier to justice to those on low incomes and vulnerable litigants.  However, the Government considers that the new fee will “better reflect how much judicial reviews cost and give claimants a greater financial interest in the outcome of their case” and that access to justice will be maintained by fee remissions for those on low incomes. 

Removal of the right to apply for an oral renewal hearing where an application is refused on the papers and found to be “totally without merit”

The Government intends to remove claimants’ right to renew their claims to an oral hearing if a judge, when refusing the application on the papers, deems the case to be “totally without merit” (“TWM”).

Critics of the proposals highlight the importance of oral argument in an adversarial system and argue that denying an oral hearing could adversely affect the most vulnerable claimants and those who are unrepresented.

The Government, however, emphasises that permission hearings often take longer than the 20 minutes they are listed for and can add considerably to the cost and delay in the judicial review process.  It also points out that the reform will only affect the weakest claims and that claimants will still have the right to appeal to the Court of Appeal (although the proposed fee increase for appeal applications may act as a financial deterrent).

The TWM concept is well known to the courts and already exists to remove the right to renew an application for permission to appeal to an oral hearing before the Court of Appeal and is also used in relation to the courts’ jurisdiction to make civil restraint orders.

Ultimately it will be for the court to decide in any particular case whether the right to an oral hearing should be removed.  The courts will bear in mind that deeming an application to be TWM also increases the prospect of a civil restraint order being obtained against the claimant.

Permission hearings can take several months to be listed and can significantly increase costs at the permission stage and so the filtering out of the weakest claims and the consequent costs savings are likely to be welcomed.  When resisting claims for judicial review, public bodies may also consider inviting the court to rule that appropriate cases are TWM; this will be a matter of judgement in each case as the courts may be slow to make such rulings given the potential consequences for claimants.

Conclusions

Opponents maintain that there is little evidence supporting the need for the Government’s reforms and that it is an important safeguard for upholding rights and ensuring the rule of law is maintained.

Despite the considerable objections, the Government is nonetheless proceeding with its reforms.  It has also indicated that it may further seek to streamline the judicial review process and is working to develop any additional proposals for reform by summer 2013.

Once the reforms have been implemented, it will be interesting to see how the courts approach the question of claims being TWM and whether the reduced limitation period increases or decreases the level of claims and compliance with the pre-action protocol.  When the limitation period under the Public Contracts Regulations 2006 was shortened to 30 days, it had the effect of arguably increasing the incidence of litigation as claimants are unable to resolve grievances during this time, so issue claims protectively.