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How to pay for a judicial review

Legal costs

While the cost of bringing judicial review claims can be very high (upwards of £30,000 if there is a full hearing and the claimant is unsuccessful) because most claimants are required to pay the defendant’s legal costs (the ‘loser pays rule’).

However, special rules apply in environmental cases. As of February 2017, a claimant's liability for the defendant's legal costs are initially capped at £5,000 if they are an individual or £10,000 for any other claim (including groups). Claimants must provide certain information about their finances when applying for environmental JRs and the defendant wishes to challenge the default caps they must do so at the earliest opportunity. Later challenges to the caps may only be made in exceptional circumstances (such as a significant change in the claimant's financial situation). Any hearing into the level of the cap must be held in private.

Successful claimants can recover their legal costs from the defendant. These costs are capped at £35,000, although it is possible to apply to the court for the cap to be raised if the case was particularly complex and a cap of £35,000 would make the case prohibitively expensive for the claimant.

These funding arrangements mean that prospective environmental cases can be run in a variety of ways - either on a Conditional Fee Agreement (CFA – commonly referred to as a ‘no win no fee’ agreement but which might require payment of  a reduced fee if the claim is unsuccessful ) or privately funded (i.e. you commit to funding your own legal fees and the capped liability of the other side if you lose) or on Legal Aid.  The type of funding agreement that we are able to offer will depend upon a number of factors, including the resources available to you and the strength of the case.

Conditional Fee Agreements (CFAs) – “no win no fee”

CFAs are available as a means of paying for your own lawyers in judicial review proceedings. The basic principle is that the claimant is not liable to pay its own lawyers if it loses the case, only if it wins - and in such circumstances, it is likely that the defendant will be ordered to pay.

If your case is strong, your lawyers may be willing to represent you on a CFA (or a form of CFA) basis. In reality, this means that you will only need to pay the defendant’s adverse costs if you lose – which are capped at £5,000 for individuals and £10,000 for all other cases.

Legal Aid

It may be that those affected by the public body’s decision or conduct are in receipt of means tested benefits such as income support or guaranteed state pension credit. If so, and if the claim has a reasonable chance of success, they may be eligible for public funding (legal aid). In such circumstances the Legal Aid Authority (LAA) covers the costs of the claimants’ solicitors and they are protected from any adverse costs risk. However, if other people who are not eligible for legal aid will also benefit if the judicial review succeeds, the LAA will require a Community Contribution to be made – usually between £5,000 and £10,000, depending on the proportion of those who would benefit who would qualify for Legal Aid.

Given these various options it is often possible to find a way to fund a judicial review challenge and concern about costs should not be an insurmountable barrier to access to the courts.

Again, as before, you should seek expert advice from a public lawyer about your options in relation to funding before deciding whether to pursue a judicial review.

Private funding

If it is not possible to run a case on a CFA basis, it should still be possible to run it on a private costs basis. This means that you would have to budget for your own legal costs and the defendant’s adverse costs (£5,000 if you are an individual and £10,000 in other cases) in the event that you are unsuccessful.

Your own legal costs will vary depending on the scale and complexity of your case but, as highlighted above, they average around £30,000. You may therefore be looking at a total costs liability of between £35,000-40,000 to take your case. In this situation, you should seek expert advice from a public lawyer before deciding whether to pursue a judicial review.

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