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The Government sets out its proposals for judicial review reform

19 December 2012
Following David Cameron's announcement to the CBI on 19 November, as described on this blog, that the Government would reform the judicial review process, the Ministry of Justice has now published a consultation paper with its proposals for reform (the "Proposals").

Under the existing system, the Government argues, only a small proportion of applications (one in six in 2011) are granted permission for judicial review, and a significant majority have little prospect of success. These cases, it states, create delays, burden public services, and, in some cases, stifle innovation and much needed reforms aimed at stimulating economic recovery and growth. Accordingly, the stated purpose of the Proposals is to "ensure that weak or frivolous claims which stand little prospect of success are identified and dealt with promptly, while legitimate claims are brought quickly and efficiently to a resolution".

To achieve this purpose, the Proposals address three key areas of the judicial review process.

First, the Proposals consider the maximum three month time limit for judicial review challenges as set out in rule 54.5 of the Civil Procedure Rules (the "CPR"). However, rather than proposing a general reduction of this limit, the Government singles out two categories of cases for which it states a shorter time limit "might be appropriate". The first of these are procurement cases. Under the Public Contracts Regulations (the "Regulations") "economic operators" are required to challenge procurement decisions within 30 days, but other interested parties, or economic operators in procurement processes excluded from the Regulations, can rely on the three month time limit in judicial review proceedings. The Government suggests that the time limit for judicial review, in these cases, should be reduced to 30 days. The second are planning applications. Under the Town and Country Planning Act 1990, challenges to decisions of the Secretary of State following a planning appeal, or the call-in of a planning application, must be brought within six weeks. Outside that appeal process, claimants rely on judicial review, and the Government proposes that, where judicial review is relied on in this way, the time limit for challenges should be reduced to six weeks.

In addition, with respect to reducing time limits, the Government proposes to clarify rule 54.5 of the CPR to make it clear that, in cases where a party is considering challenging a continuing breach or cases involving multiple decisions, the three month time limit for making such a challenge runs from the first incidence of the grounds rather than their final incidence.

Second, the Proposals suggest changes to the procedure for applying for permission to bring judicial review proceedings. At present, the Proposals state, a claimant has four opportunities to argue the case for permission (the original permission application, an oral hearing for permission should the original application be rejected (an "Oral Renewal"), an application for permission to appeal to the Court of Appeal and the appeal hearing itself) and this imposes a significant burden on the resources of public authorities and the Courts, and in turn means that well-founded cases take longer to proceed. To change this, the Government suggests removing the right to an Oral Renewal, first, in cases where there has already been a prior judicial process involving a hearing on substantially the same issue as raised in the Judicial Review application, and, second, in cases that the Judge, on the basis of the written application, has determined to be "totally without merit".

Finally, the Proposals suggest changes to the fees charged for judicial review. The current arrangements, it argues, do not reflect the costs incurred by the Courts, in particular those incurred with respect to Oral Renewals which, at present, do not require a further court fee. In addition to the existing £60 fee for judicial review applications, the Government proposes that, for an Oral Renewal application, a claimant should pay the same fee as required for the matter to proceed to Court, namely £215 (which, in fact, is likely to rise to £235 under proposals contained in an ongoing consultation on fees), although, if successful, a party would not then be required to pay a further fee for a full judicial review hearing.

Compared to the high-flown November rhetoric of David Cameron and Chris Grayling, the Justice Secretary, the Proposals seem limited. This is particularly the case from the standpoint of commercial judicial review. Mr Cameron's promise to "reduce the time limit when people can bring cases" now applies only to two discrete categories of cases. As the Proposals recognise, to do more than this conflicts with the need to give parties time to negotiate before launching proceedings as enshrined in the pre-action protocol for judicial review. His promise to "halve" from four to two the number of "bites at the cherry" claimants have to gain permission for judicial review has not materialised. The Proposals allow Oral Renewal requests to be refused but only in limited circumstances. Finally, his promise to "charge more for reviews so people think twice about time-wasting" may have some bite for unfunded applications brought by individuals, such as immigration claims, but it seems unlikely the changes will have any impact on companies, or well-funded interest groups, considering whether to challenge a refusal to grant permission for judicial review.

The Proposals, accordingly, are more moderate than was first suggested and, given the initial backlash against reform (see for example the comments of the legal profession including Lord Woolf, the former Lord Chief Justice) this is likely to be welcomed, as are any changes that reduce the pressure on the Administrative Court without limiting access to justice. However, consultees will not have much time to help the Government achieve such changes. The deadline for consultation responses to the Proposals is 24 January 2013.

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