Judicial review reform - will it work?

26 April 2013

Under the tabloid-friendly press release headline “No more using judicial review as a cheap delaying tactic”, the Ministry of Justice has published the Government’s Response to the consultation on reforming judicial review. To the surprise of many, the Government has actually taken on board at least some of the responses to the consultation and dropped two of its original proposals. It has also modified a further proposal – to reduce the time limits for bringing judicial review in planning and procurement cases -  but in doing so may, inadvertently, have created a new area of uncertainty for public bodies, developers and businesses.  

The original proposal in relation to planning and procurement cases was that the time limits for bringing a judicial review claim should be shortened to 6 weeks and 30 days respectively, so as to match the periods for statutory challenges to decisions in these areas. The Government’s Response acknowledges that a large majority of those responding to the consultation disagreed with these proposals (and all of its other proposals too) but nevertheless went on to say that “On balance, the Government has concluded that shorter time limits in these cases are justified by the need to reduce delays and to provide greater certainty in public decision-making on planning and procurement matters”.

However, and in reaction to responses to the consultation which were to the effect that these shortened periods would not allow time for the parties to fulfil the existing requirements of the Pre Action protocol, the Government’s Response says that it will be inviting the Master of the Rolls “to revise the Pre-Action Protocol to disapply it in respect of these cases”. This is a very curious thing to do if the aim is to reduce delays and provide greater certainty.

The express aims of the Pre-Action Protocol process are for the parties to identify the issues in dispute and to establish whether litigation can be avoided – and in practice it often meets those aims, with claimants being persuaded that there are no good grounds to bring a claim or defendants being persuaded that there are good reasons to change, or at least modify, decisions. At the very least, the result of going through the process leads a narrowing of the grounds of any challenge. These important benefits will now be lost. In addition, public bodies and those relying on their decisions may now get no notice at all of the likelihood of a judicial review challenge until the day that they are served with the proceedings themselves. A better solution would have been to retain the Pre Action protocol process but to truncate it -  although this would need to involve a reduction in the time allowed to a public authority to reply to a pre action letter, which may well be the reason why it was not proposed by the Ministry of Justice (since public authorities already struggle, in our experience, to comply with the existing time limit).

If this introduction of uncertainty and delay were not enough, there is an interesting comment tucked away in one of the responses to the consultation that might be read to suggest that shortening the limitation periods will not always have the Government’s desired effect. The Lord Chief Justice and other senior judges responded to the consultation and did not object in principle to the reduction of the time limits.  That acceptance of the change was expressly conditional on the retention of the court’s power to extend time for bringing claims and the judges also said this: “There is likely to be an increase in the number of applications for an extension of time. It is possible that a greater proportion of extension of time applications will succeed”. Some might read the “It is possible...” as a coded warning that the courts are likely to be sympathetic to extension applications  - which will only add to the uncertainty that the changes are said to be intended to address.

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