28/04/2015
On 13 April 2015 the reforms amended by the Criminal Justice and Courts Act 2015 (CJCA 2015) came into force. These reforms make sweeping changes to the process of judicial review, with the aim of reducing the amount of unnecessary and weak claims, as well as apportion costs more fairly so they do not fall solely on the taxpayer.
The reforms are not without controversy. Late last year Labour's Shadow Lord Chancellor and Justice Secretary Sadiq Khan described them as 'an unconstitutional attack on the rights of the British people'.
Civil judicial review cases have increased slightly from 1,730 in 2000 to 2,190 in 2013; the government has won a majority of them. Any attempt to narrow the criteria that a case can be brought is often seen as an attack on the basic ‘rule of law’.
With many construction contracts being awarded by central and local government, those in the construction industry and other sectors such as engineering and architecture need to be aware of the changes that have recently taken place.
Here is a brief overview of the reforms and what they will mean for your business.
A Tighter Test for Granting Judicial Review
It is going to be a lot tougher for individuals and corporations to use the judicial review as a stalling tactic from now on. CJCA 2015, s 84 makes it mandatory for the courts to refuse to grant leave for judicial review 'if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred'. The court can disregard this requirement if they feel it is in the publics’ best interest.
This amendment will result in many applications failing at the first hurdle. If your organisation plans to launch a judicial review against a public body decision it is now in your best interests to obtain sound legal advice as to whether or not it has a chance of passing the test set out in section 84.
Proving you can Finance a Judicial Review
Unless a claimant can provide the court with specific information about how they will finance their claim, the court is required to refuse leave for judicial review. Corporations may need to supply information regarding whether or not their members can provide financial support to ‘meet liabilities arising in connection with the application’. The court can also consider whether costs should be paid by a third party who does not have a direct interest in the outcome of the claim but has been identified as providing financial support.
The Costs of an Intervener in Judicial Reviews
Under s 87 of the CJCA 2015 the court must order interveners (a person granted permission by the court to file evidence or make representations in judicial review proceedings which they are not a party to) to meet their own costs unless there prove to be exceptional circumstances. Furthermore, the court must order the intervener to pay costs ‘the court considers have been incurred by the relevant party as a result of the intervener’s involvement in that stage of the proceedings’.
Critics of the reforms have stated that this could result in many decisions going unchallenged as interveners are often charitable organisations or lobbyists who will be unable to justify the financial risk of involving themselves in a judicial review case.
Cost Capping Judicial Review Cases
Under CJCA 2015, s 88 a costs capping order limiting or removing the liability of a party to judicial review to pay another party’s costs will only be made if leave to apply for judicial review has been granted and the claimant must apply for the order.
The courts will only make such orders if satisfied that '(a) the proceedings are public interest proceedings; (b) in the absence of the order, the applicant for judicial review would withdraw…or cease to participate...; and (c) it would be reasonable for the applicant for judicial review to do so'.
This can result in a claimant incurring large costs before an order is granted and is likely to reduce the amount of claims for judicial review. Once again, a legal professional will be able to advise you as to whether or not pursuing a judicial review claim is in your best financial interests.
In Conclusion
These changes to judicial review are likely to have the desired effect of reducing the number of claims and preventing the small number of proceedings which are brought on a tactical basis to advance a private agenda. Government departments and local bodies could very well see a reduction in the amount of challenges to their decisions; however, the money they save on having to fight judicial review cases may be redirected towards other projects, creating a long term benefit to the construction industry.
If you would like more information on the changes made to judicial review this week then please phone our office on 0207 993 6960 to make an appointment.
Fisher Scoggins Waters is a leading construction, engineering and manufacturing litigation firm, specialising in disputes and disasters. For further information on this article or any of our litigation services, please contact us on +44 (0) 207 993 6960.