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Grayling announces Judicial Review reforms

23 April 2013
Secretary of State for Justice, Chris Grayling, has today announced a package of judicial review reforms targeting "weak, frivolous and unmeritorious cases, which congest the courts and cause delays."

Most of the proposals that were set out in the consultation on the reform of Judicial Review (the "Consultation") are to be implemented, despite the majority of responses expressing their opposition to the reforms. The driving factor behind the proposals is the exponential rise in the number of Judicial Review applications over the last decade which has resulted in overburdened courts struggling to clear a backlog of cases. The Government's perception is that the increasing delays in concluding Judicial Review claims have led to a lack of certainty in the decisions made by public bodies.

In a statement today, Grayling defended the reforms stating: "Judicial Review should be used by people who have carefully considered whether they have proper grounds to challenge a decision. We are changing the system so it cannot be used anymore as a cheap delaying tactic."

There are three key areas that will be affected by the reforms: time limits; permission applications; and fees.

1. Time limits

The time limit for bringing a Judicial Review in respect of planning decisions will be shortened from three months from the grounds giving rise to the claim to six weeks. "Planning decisions" are defined as decisions as to "whether or not to grant planning permission made under the various planning acts". Planning policy decisions are expressly excluded.

The time limit for Judicial Review of procurement decisions (defined as all contracts subject to the Public Contracts Regulations 2006) is also being shortened from three months to thirty days.

The Government confirmed that it would not take further its proposal to clarify the law on time limits in cases where the grounds for a claim are ongoing.

The requirement to bring claims in these areas "promptly" will be dropped and the Government will also be inviting the Master of the Rolls to revise the Pre-Action Protocol for Judicial Review so that it does not apply in such cases.

2. Permission applications

Where an application has been determined on the papers as being totally without merit, there will no longer be a right to renew the application at an oral hearing. The Consultation response expressed confidence in this reform, given that the "totally without merit" test is one that is already applied and "well understood by Judges". It was felt that this also went some way to addressing concerns that the reform would restrict claimants' access to justice.

The Government did not pursue its proposal that claimants should not have the right to an oral renewal where there has already been a "prior judicial hearing" on "substantially the same matter" due to the difficulties in defining these concepts and the risk of increased satellite litigation.

3. Fees

A fee will now be payable for an oral renewal of an application for permission.  This fee will be £215 - the same as the fee for a substantive hearing. If permission is granted at the oral renewal then no further fee will be payable at the substantive hearing, thereby preventing applicants from having to pay twice for the same claim. A response to the separate consultation on increasing fees for Judicial Review cases is due shortly; therefore, the final fee for oral renewals remains subject to change.

This Consultation has provoked fierce debate both in terms of the substance of the proposed reforms and the way the process was conducted. Responses raised concerns as to the shortness of the consultation period and the lack of evidence to substantiate the case for reform. There was also little support for the reforms that will now become law. Approximately 70% of responses disagreed with shortening the time limits for planning and procurement cases. Over 70% disagreed that the right to an oral renewal should be restricted where a case was totally without merit and more than 50% of responses disagreed with charging fees for oral renewals. Much of the criticism centred on issues of access to justice and the discriminatory effect of the proposals.

Grayling acknowledged in the foreword to the Government's response that most of the responses to the Consultation were opposed to the proposals. "There was criticism of the consultation procedure and the lack of evidence, and some saw the proposals as a serious attack on the rule of law". However, his response was uncompromising: "I do not accept these criticisms. My reforms target the weak, frivolous and unmeritorious claims, which congest the courts and cause delays… I remain convinced that reform is necessary. I therefore intend to take forward most of the reforms in the engagement exercise".

There is widespread scepticism as to whether these reforms will achieve their stated aims. Many commentators note that the increased costs proposed are unlikely to be a deterrent. In terms of streamlining planning and procurement cases, the reduced time limits may not actually improve efficiency as the increased backlog in Judicial Review applications has primarily been caused by a sharp rise in asylum and immigration claims. Moreover, in planning and procurement cases, challenges are already being brought very promptly due to the level of legal awareness in these areas. Forcing applicants to bring cases very quickly may actually reduce opportunities for settlement, resulting in more applications and more backlog in the courts. There is also likely to be a reduction in the quality of the cases presented.

The Government has clearly set out its stall on this issue. Whether or not the reforms will be effective in tackling the backlog in judicial review claims (and whether they can do so without restricting claimants' access to justice) remains to be seen.

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