The FCA – Transformation to Assertive Supervision
The Government has opened the latest in its series of consultations on proposals for the 'reform' of judicial review. The current consultation arises out of changes to judicial review procedure already introduced by Part 4 of the Criminal Justice and Courts Act 2015 (CJCA).
Those changes concern the financial information that all claimants starting judicial review proceedings will have to supply to the Court. They also concern the financial information that any claimant seeking a cost capping order will have to supply to the Court and to the other parties. Unsurprisingly – this has been the leitmotif of the whole 'reform' process – there is a striking lack of evidence to justify the proposals, allied to an apparent blindness to what currently happens in practice and to the powers currently available to the courts.
The aim of the current proposals is said to be “to limit abuse and evasion of proper costs liability” and the means by which this is to be tackled is by ensuring “the courts have the necessary financial information” when considering costs. But neither in this paper nor any of the predecessors has the Government presented any actual evidence (in the form of specific examples) of such abuse or evasion or any evidence of Courts being unable to obtain relevant financial information.
The first group of proposals now consulted on follow from sections 85 and 86 CJCA. Section 85, when brought into force, will make it mandatory for every claimant to provide information about the financing of their claim and section 86 will require the Court first of all to take that information into account when making an order for costs in judicial review proceedings and then in addition to consider, if that information identifies a third party as providing or as likely or able to provide financial support for the purposes of the proceedings, whether to make an order for costs against that third party.
What is now proposed is to amend the Civil Procedure Rules so that every claimant will have to declare whether or not they can meet the anticipated liabilities arising in connection with the judicial review and, if they cannot, identify anyone who is contributing or likely to contribute £1500 or more. Additionally, in the case of corporate bodies, they will also have to provide the names and addresses of all of their members.
There are two particularly striking aspects to this proposal. First, it seems to be based on a theory (although fantasy might be a better description) that there are a significant number of cases in which third parties are surreptitiously funding and controlling judicial review cases – and there is no evidence at all that this is happening. Second, in setting the notification threshold at £1500, the Government has adopted a surprising approach to the evidence available to it: it relies on three external sources of data (which are described as “not particularly substantial or quality assured”) to reach a conclusion that the cost of both sides of a judicial review are likely to be between £11,000 and £22,000 and in light of that latches on to £1500 as a contribution level which “may be indicative of a degree of third party control of a claim”. However this ignores figures from the Government Legal Department, relied on elsewhere in the consultation paper, which put defence legal costs alone in a non-immigration or asylum judicial review as being between £8,000 - £25,000. In view of the fact that a claimant’s legal costs will normally at least match (and in most cases will substantially exceed) the defence costs, a more realistic notification threshold, even on the Government’s own approach, would be at least £3000.
The second group of proposals now consulted on follow on from section 88 CJCA. Section 88 sets out the circumstances in which a cost capping order (protective costs order) may be granted. What is now proposed are amendments to the Civil Procedure Rules so that a claimant applying for a cost capping order has to provide relatively detailed information about its financial position, including details of any third party funding.
Again, there are two really striking aspects of the proposals. The first is that the number of cases in which it will apply is tiny – on the Government’s own figures probably no more than 5 a year and quite possibly less. The second is that in practice most, if not all, of the information covered by the proposed rule change is information that an applicant seeking a protective costs order now would in any event provide (and if it didn’t, would be most unlikely to obtain the order). There is no recognition, or even the hint of a recognition, of this in the consultation paper.
In his Ministerial Foreword to the consultation the Lord Chancellor says that the thing he will defend above all else is the rule of law and that “judicial review is an essential foundation of the rule of law”. Welcome words but difficult to reconcile with bringing forward these proposals, based as they are on a fundamental misconception that judicial review is being abused and liability for costs being evaded.
If you require advice in relation to judicial review or any other aspect of public law, please contact Adam Chapman
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.
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.
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.
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R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
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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.
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.’
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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.
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.
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.
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.
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.
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.
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  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
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.
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