The Criminal Justice and Courts Bill 2014 and environmental judicial review

On 4th February 2014, the Ministry of Justice published its response to a 2013 public consultation on further reforms to judicial review. On the same date, the Government published the Criminal Justice and Courts Bill  to give effect to the Ministry of Justice’s findings. The provisions of the Bill are primarily concerned with addressing “procedural defects” in the judicial review process, notably via a strong package of financial reforms to “limit the pursuit of weak claims”. Other elements in the overall reform package will be taken forward by means of secondary legislation.

These proposals follow previous reforms actioned swiftly in 2013, notably a reduction in the time limits for bringing a judicial review in planning cases from three months to six weeks, the removal of a right to an oral renewal in cases assessed by a judge as totally without merit and the introduction of a new fee for oral renewal of a permission hearing (initially £215). The 2014 package of measures will compound these restrictions, making it even more forbidding for applicants to proceed with claims, (which is, of course, the point).

Despite consulting on restrictions to the rules on standing, the Government has concluded that this is not the best mechanism to “limit the potential for mischief”. Instead, it prefers to scare people with an alarming cocktail of financial dis-incentives. Firstly, the existing ‘Mount Cook principles’ (whereby a claimant’s liability is generally limited to the defendant’s costs of preparing the Acknowledgement of Service) will be abolished, requiring unsuccessful claimants to pay the full costs of an oral renewal hearing.

Secondly, clause 53 of the Criminal Justice and Courts Bill seeks to establish a presumption that interveners will bear their own costs and any costs arising to the parties from their intervention. While it has always been the case (at least in my experience) that interveners bear their own costs, the possibility of having to cover the costs incurred by other parties as a result of intervening is new (although it does give rise to the interesting possibility that an order for costs could be served on the Government where it has unsuccessfully intervened in a case). It is, however, a serious backward step. Even the Government agrees that “interveners can add value, supporting the court to establish context and facts” – so why seek to deter them?

Finally, clause 51 of the Bill requires applicants to provide information on funding at the outset of the judicial review, and requiring the courts to have regard to this information in order to consider making costs orders against those who are not a party to the judicial review, thus swiftly reducing the judiciary to little more than Costs Judges in this regard.

In the planning sphere, the Government will build upon the Planning Fast Track (PFT) by establishing a Planning Court in the High Court, with a separate list under the supervision of a specialist judge. While the introduction of a dedicated forum has many advantages (such as accumulating expertise and reducing delay) it must demonstrate a broad approach to planning cases, not just the views of one particular judge.

The Civil Procedure Rule Committee will also be invited to include time limits for case progression in the CPR. There will also be the introduction of a permission filter for challenges under s.288 of the TCPA 1990. Finally, there will also be a lower threshold for the “no difference” test. From now on, the court can refuse permission or a remedy in a case where the alleged failure was ‘highly unlikely’ to have made a difference (see clause 50 of the Criminal Justice and Courts Bill).

It is disappointing that the Government is pressing ahead with such ill-conceived proposals, particularly when they appear to be based on little more than anecdotal evidence submitted by a handful of developers. But proceed it will, at times irrespective of the views expressed by those responding to the proposals*.  While these proposals are designed to make proceeding with JR more difficult, they also have implications for environmental cases, and thus the UK’s ability to comply with its requirements under the UNECE Aarhus Convention and EU law. We will continue to ensure that the European Commission and the Aarhus Convention Compliance Committee are fully aware of these deficiencies.

* Of the 118 respondents responding to the proposal to require applicants to provide information on funding at the outset of the judicial review, 30 were in favour of the proposals and 73 were not. Annex B (page 37)