Judicial Review costs – a missed opportunity to extend access to justice

1 April 2019

In its consultation “Extending Fixed Recoverable Costs in Civil Cases: Implementing Sir Rupert Jackson’s proposals”, which was launched on 28 March 2019, the Ministry of Justice has failed to take forward a proposal that could have had a significant impact on the ability of individuals to hold public bodies to account through judicial review proceedings.

Sir Rupert Jackson was commissioned by the former Lord Chief Justice and the Master of the Rolls to draw up recommendations for extending fixed recoverable costs. His report was published in July 2017 and included 2 recommendations in relation to JR costs, firstly that the ‘Aarhus Rules’ be adapted and extended to all JR claims and secondly that cost management be introduced in heavy JR cases. In his report Sir Rupert Jackson discussed, but did not recommend, the introduction of  a scheme of fixed recoverable costs for ‘standard’ JR cases.

The Ministry of Justice has accepted – and so is now consulting on – the cost management recommendation. It has also indicated that it is giving thought to – but is not (yet) consulting on – the introduction of a fixed recoverable cost scheme for immigration and asylum cases in the Upper Tribunal. It has rejected – and so is not consulting on – the extension of the Aarhus Rules.

His 2017 report was not the first time that Sir Rupert Jackson had addressed the issues of cost in JR proceedings. In his 2010 report “Review of Civil Litigation Costs: Final Report” he had recommended the introduction of a form qualified one way costs shifting. As he somewhat ruefully observed in his 2017 report, that recommendation has never been formally rejected by the Government, but “it is probably realistic to proceed on the basis that[it] is not going to come”.  He therefore made what he expressly described as “a modest proposal” – the extension of the Aarhus Rules –  aimed at promoting access to justice. Sadly this was not modest enough for the Ministry of Justice.

The Aarhus Rules, which apply in environmental JRs, are intended to address the obligation under the Aarhus Convention that review procedures for environmental claims should not be ‘prohibitively expensive’. The way they work is through providing caps on liability for costs, both for claimants and defendants. Under Sir Rupert Jackson’s proposals, regime would be extended to all JRs where the claimant was an individual not in receipt of legal aid,  would be optional and would be means tested. The cap on adverse costs liability would be (as under the existing Aarhus regime) £5,000 for  a claimant (or £10,000 when claiming as or on behalf of a business) and £35,000 for a defendant.  In putting forward this recommendation Sir Rupert Jackson recognised that it was imperfect but suggested  that overall it would promote access to justice, striking:

the right balance between (a) the need to protect the public purse and (b) the need to hold public authorities to account”.

The Ministry of Justice’s reason for rejecting the proposal is simple: it does not accept that there is any ‘issue’ with access to justice in JR cases. The suggestion is that the availability of legal aid, combined with the possibility of a claimant applying for a cost capping order, means that there is no problem here. Sir Rupert Jackson had, unsurprisingly, considered the availability of both legal aid and cost capping orders and had concluded that they were insufficient. The Ministry of Justice has not explained why he was wrong to reach that conclusion, but simply repeated an assertion that had already been made to him by Government lawyers when he was gathering evidence.

In his foreword to the consultation, the Lord Chancellor said:

A fair and accessible justice system lies at the heart of our democracy. Ensuring that every citizen has recourse to civil litigation, where appropriate, is part of a just society”.

These are fine words, but not matched by action. Sir Rupert Jackson’s proposal to extend the Aarhus Rules to all JR claims would, albeit in a small – modest -  way, have increased the ‘recourse’ individuals have to JR proceedings. It is a significant missed opportunity to have rejected the recommendation out of hand.

About the author

Adam Chapman is a Partner and Head of the Public Law team. Recognised as a “leader in his field” in Chambers and Partners UK and Legal 500, Adam’s areas of expertise include judicial review litigation, human rights law and public inquiries

Latest blogs & news

The Judicial Review and Courts Bill: Proposed reform of Judicial Review

Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.

As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.

Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)

The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.

New guidance encourages judicial review practitioners to be concise, succinct and prepared

Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.

Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.

The UK Supreme Court has confirmed the principles for judicial review of policies

R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38

Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.

Judicial Review Reform – waiting for the sting

Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.

Government Launches Public Consultation on Reforms to Judicial Review

On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.

Supreme Court rules that Nigerian communities can have their case against Shell heard in the English courts

This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.

Striking a balance or tipping the scales? The Independent Review of Administrative Law and the possible reform of Judicial Review

On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’

Office for Students refusal to register higher education provider unlawful due to failure to delegate and ‘secret policy’

The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.

International Court of Justice and UN General Assembly do not alter the outcome of the Chagos Islands challenge

In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.

Voter ID laws and the way courts interpret legislation

Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.

The High Court confirms that unincorporated associations may participate in both judicial review claims and statutory challenges

Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.

What does the new government mean for public lawyers?

Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU. 

Enemies of the constitution? The words of those attacking independent judges are corrosive and wrong

Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.

Since prorogation ‘never happened’ what happens next?

The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.

When politics and law collide: The prorogation judicial reviews

Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.

“WhatsApp” with Dominic Grieve’s motion for Brexit communications?

Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.

High Court finds Mayor’s Congestion Charge decision did not involve unlawful discrimination

On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London [2019] EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019


London Climate Action Week: Saving Londoners from nitrogen dioxide, one judicial review at a time

According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

Judicial Review Insights

Close Load more

Skip to content Home About Us Insights Services Contact Accessibility