Kerry Underwood

JUDICIAL REVIEW AND FIXED COSTS: POST 5

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You can now book onto my Fixed Costs Autumn Tour – here

Lord Justice Jackson’s proposals in relation to Fixed Costs and Judicial Review (JR) are contained in chapter 10 of his report, and the full report is here.

He recognises the importance of JR, saying that it is a “crucial means by which citizens can challenge the lawfulness of public authorities’ decisions, actions and omissions.” (Paragraph 1.1)),  and

“An effectively functioning system of JR is, therefore, central to the rule of law.” (Paragraph 1.2).

In his previous report Lord Justice Jackson recommended that Qualified One-Way Costs Shifting be introduced for JR claims, but that proposal has not been adopted by the government, although the government has made it clear that it has neither accepted, nor rejected, that original proposal.

On 1 April 2013, at the same time as the previous Jackson Reforms were introduced, an optional regime was introduced for environmental JR claims.

CPR 45 caps a Claimant’s liability for defence costs at £5,000.00, if the Claimant is an individual, and £10,000.00 if it is a business.

The Defendant’s liability is capped at £35,000.00.

The purpose of this rule was to comply with the Aarhus Convention (The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters signed in Aarhus, Denmark, on 25 June 1998), and so LJ Jackson refers to these as the Aarhus Rules.

On 28 February 2017, the Aarhus Rules were substantially amended, and now require Claimants to submit a Statement of Means, including any financial support provided by others.

One benefit that the 2017 rule changes did have was to extend the Aarhus rules to two other forms of statutory review, that is appeals under Section 289(1) of the Town and Country Planning Act 1990 and those brought under Section 65(1) of the Planning (Listed Buildings and Conservation Areas) 1990.

The court now has power, on the basis of the information on in the Statement of Means, to vary, up or down, the capped costs figures.

Thus the “caps” are now provisional and subject to variation by the court.

Environmental groups have challenged, in the High Court, ironically by way of Judicial Review, the amended rules and a decision is awaited.

The United Nations Economic Commission for Europe, nothing to do with the European Union, in a draft decision expresses concern at the overall slow progress of the United Kingdom in establishing a Costs Regime fulfilling its treaty obligations.

“Prohibitively expensive”

In R (on the application of Edwards & Pallikaropoulos) v Environment Agency [2008] UKHL 22

The House of Lords referred the question as to what was “prohibitively expensive” to the European Court of Justice.

In its judgment at [2013} 1WLR 294

the European Court of Justice held that the proceedings must neither “exceed the financial resources of the concerned nor appear, in any event, to be objectively unreasonable”.

That decision is virtually useless.

The European Court of Justice did not define what was meant by financial resources or how they had to be depleted before they could be said to be “exceeded” for these purposes.

It requires the UK “to, as a matter of urgency, take the necessary legislative regulatory, administrative and practical measures to ensure that the allocation of costs in all court procedures [which are subject to the Aarhus Convention] is fair and equitable and not prohibitively expensive”.

The United Kingdom’s participation in the Aarhus Convention is nothing to do with its membership of the European Union and therefore these issues will continue once the United Kingdom has left the European Union.

The Aarhus Rules in any event apply to only around 1% of JR cases. (Paragraph 1.8)

On 8 August 2016 a new regime of Judicial Review Costs Capping Orders, applying to all JR cases, not just Aarhus Convention cases, was introduced.

This enables the court to cap each party’s costs liability, having regard to the circumstances set out in Section 88 of the Criminal Justice and Courts Act 2015 and CPR 46.

These circumstances include a Claimant’s means and matters such as whether the Claimant’s representatives are acting free of charge.

Discussion about JR in LJ Jackson’s report is in chapter 3, paragraphs 4.23 to 4.25 and chapter 4, paragraphs 9.1 to 9.4, 12.1 to 12.2, 16.2 to 16.9 and 17.4.

At Appendix 16 to the report is the Westgate Report prepared by a working group chaired by Martin Westgate QC.

The Westgate Report looks at how the Aarhus Rules could be developed and used for all JR cases.

Lord Justice Jackson concluded:

 

“(i)          Even though many JR cases fall into a standard pattern, costs are too variable to permit the introduction of a grid of FRC.

(ii)           CCOs are of little practical value, because the procedure for obtaining such orders is too cumbersome and too expensive. The criteria for granting CCOs are unacceptably wide and the outcome of any application must be uncertain. Also, that outcome will not be known until too late in the day.

(iii)          There would be merit in extending the Aarhus Rules, suitably amended, to all JR claims. The fact that most JR cases fall into a standard pattern makes it possible to set default figures as caps, even though it is not practicable to draw up a grid of FRC.

(iv)         The discipline of costs management should be available in larger JR claims, at the discretion of the court.”

 

“CCO” is a reference to a Costs Capping Order, being the new regime of Judicial Review Costs Capping Orders which came into force on 8 August 2016, which I refer to above.

Lord Justice Jackson then states that if Qualified One-Way Costs Shifting in JR is not acceptable to the government, then the Aarhus Rules should be extended to all Judicial Review claims.

While accepting that it is tiresome and expensive for public authorities to face many unmeritorious claims Lord Justice Jackson states that the ready availability of JR proceedings in which public bodies are held to account for their actions and decisions is a vital part of our democracy and both JR and the free press are, in their different ways, bulwarks against the misuse of power. (Paragraph 3.2 of chapter 10).

 

Lord Justice Jackson’s proposals in detail

Lord Justice Jackson’s detailed proposals are contained in paragraph 3.3 of chapter 10 and paragraphs 129 to 130 of his report and are:

 

“(i)          The regime should be available in any case where the claimant is an individual (or an individual who is a representative of a number of natural persons with a similar interest) without legal aid.

(ii)           The regime should be optional. Any JR claimant should be able to opt in.

(iii)          There must be some form of means testing for those claimants who opt in.8 Any investigation of means should be in private and the claimant’s disclosure should be made only to specified individuals within a defined confidentiality ring.

(iv)         The default figures of £5,000/£10,000 for claimants and £35,000 for defendants should remain, but be subject to three yearly reviews.

(v)          Any application to vary those figures should be made by the claimant in the claim form and by the defendant in the acknowledgement of service. Such applications should be dealt with at the permission stage. Such applications should only be entertained later in exceptional circumstances, for example a fundamental change in the case or the discovery of dishonesty in the claimant’s disclosure.

(vi)         If the claimant’s costs liability is increased above the default figure, they should be permitted to discontinue within 21 days and (if they do) only be liable for adverse costs to the extent of the previous figure.”

These reforms cannot be made by rule changes alone as Sections 88 to 90 of the Criminal Courts and Justice Act 2015 will need to be amended.

Those provisions impose restrictions on the Costs Capping Orders which the court can make in Non-Environmental JR cases.

LJ Jackson says that ideally those sections and the rules made under them should be repealed as they “serve little useful purpose now and they will serve no useful purpose whatsoever if the above proposal is accepted.” (Paragraph 3.5 of Chapter 10)

LJ Jackson suggests that there is no need to pilot this scheme as the Aarhus Rules in environmental cases, in place for over four years now, have effectively been such a pilot, and a successful one.

 

Costs Management in heavy Judicial Review cases

Lord Justice Jackson recommends that in any JR case where the costs of a party are likely to exceed £100,000.00, or the hearing is likely to exceed two days, the court should have discretion to make a Costs Management Order the stage of granting permission.

The court could do this either of its own motion, or upon application by either party.

There should be a new, simpler form of Precedent H and if the court makes an order then:

 

“(i) the parties must (if they have not already done so) serve their budgets in the new Form H within 21 days;

(ii) the parties must discuss and seek to agree each other’s budgets;

(iii) in so far as the budgets are not agreed, the court will resolve any dispute at a Costs Management Hearing.”

 

If JR budgets are agreed by the parties, then the court would have no discretion to interfere.

As to piloting the scheme Lord Justice Jackson says that that is an option for consideration by the Rule Committee but that it may be unnecessary as judges and practitioners in the Administrative Court are already familiar with budgeting in other context and the proposed Costs Management Regime for these heavier cases will be discretionary.

 

Costs limits in Aarhus Convention Claims

The current rules are contained in CPR 45.41 to CPR 45.45 and reads:

VII COSTS LIMITS IN AARHUS CONVENTION CLAIMS

Scope and interpretation

45.41

(1) This section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims.

(2) In this Section—

(a) “Aarhus Convention claim” means a claim brought by one or more members of the public—

(i) by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1) or 9(2) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”); or

(ii) by judicial review which challenges the legality of any such decision, act or omission and which is within the scope of Article 9(3) of the Aarhus Convention;

(b) references to a member or members of the public are to be construed in accordance with the Aarhus Convention.

(3) This Section does not apply to appeals other than appeals brought under section 289(1) of the Town and Country Planning Act 1990 or section 65(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which are for the purposes of this Section to be treated as reviews under statute.

(Rule 52.19A makes provision in relation to costs of an appeal.)

Opting out, and other cases where rules 45.43 to 45.45 do not apply to a claimant

45.42

(1) Subject to paragraph (2), rules 45.43 to 45.45 apply where a claimant who is a member of the public has—

(a) stated in the claim form that the claim is an Aarhus Convention claim; and

(b) filed and served with the claim form a schedule of the claimant’s financial resources which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth.

(2) Subject to paragraph (3), rules 45.43 to 45.45 do not apply where the claimant has stated in the claim form that although the claim is an Aarhus Convention claim, the claimant does not wish those rules to apply.

(3) If there is more than one claimant, rules 45.43 to 45.45 do not apply in relation to the costs payable by or to any claimant who has not acted as set out in paragraph (1), or who has acted as set out in paragraph (2), or who is not a member of the public.

Limit on costs recoverable from a party in an Aarhus Convention claim

45.43

(1) Subject to rules 45.42 and 45.45, a claimant or defendant in an Aarhus Convention claim may not be ordered to pay costs exceeding the amounts in paragraph (2) or (3) or as varied in accordance with rule 45.44.

(2) For a claimant the amount is—

(a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person;

(b) £10,000 in all other cases.

(3) For a defendant the amount is £35,000.

(4) In an Aarhus Convention claim with multiple claimants or multiple defendants, the amounts in paragraphs (2) and (3) (subject to any direction of the court under rule 45.44) apply in relation to each such claimant or defendant individually and may not be exceeded, irrespective of the number of receiving parties.

Varying the limit on costs recoverable from a party in an Aarhus Convention claim

45.44

(1) The court may vary the amounts in rule 45.43 or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim.

(2) The court may vary such an amount or remove such a limit only if satisfied that—

(a) to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and

(b) in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant.

(3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either—

(a) exceed the financial resources of the claimant; or

(b) are objectively unreasonable having regard to—

(i) the situation of the parties;

(ii) whether the claimant has a reasonable prospect of success;

(iii) the importance of what is at stake for the claimant;

(iv) the importance of what is at stake for the environment;

(v) the complexity of the relevant law and procedure; and

(vi) whether the claim is frivolous.

(4) When the court considers the financial resources of the claimant for the purposes of this rule, it must have regard to any financial support which any person has provided or is likely to provide to the claimant.

(Rule 39.2(3)(c) makes provision for a hearing (or any part of it) to be in private if it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality.)

Challenging whether the claim is an Aarhus Convention claim

45.45

(1) Where a claimant has complied with rule 45.42(1), and subject to rule 45.42(2) and (3), rule 45.43 will apply unless—

(a) the defendant has in the acknowledgment of service—

(i) denied that the claim is an Aarhus Convention claim; and

(ii) set out the defendant’s grounds for such denial; and

(b) the court has determined that the claim is not an Aarhus Convention claim.

(2) Where the defendant denies that the claim is an Aarhus Convention claim, the court must determine that issue at the earliest opportunity.

(3) In any proceedings to determine whether the claim is an Aarhus Convention claim—

(a) if the court holds that the claim is not an Aarhus Convention claim, it will normally make no order for costs in relation to those proceedings;

(b) if the court holds that the claim is an Aarhus Convention claim, it will normally order the defendant to pay the claimant’s costs of those proceedings to be assessed on the standard basis, and that order may be enforced even if this would increase the costs payable by the defendant beyond the amount stated in rule 45.43(3) or any variation of that amount.

Practice Direction 45 dealing with Aarhus Convention claims has now been omitted and contains nothing.

Part V of CPR 46 deals with costs and claims for Judicial Review and reads:

Claims for judicial review: costs against interveners

46.15

(1) In this rule the terms “intervener” and “relevant party” have the same meaning as in section 87 of the Criminal Justice and Courts Act 2015 (“the 2015 Act”).

(2) A relevant party may apply to the court for an order for an intervener to pay costs in accordance with section 87 of the 2015 Act.

(Section 87 of the 2015 Act applies to judicial review proceedings in the High Court and Court of Appeal.)

(Rule 54.17 makes provision for any person to be able to apply for permission to file evidence or make representations at the hearing of a judicial review.)

SECTION VI JUDICIAL REVIEW COSTS CAPPING ORDERS UNDER PART 4 OF THE CRIMINAL JUSTICE AND COURTS ACT 2015

Judicial review costs capping orders – general

46.16

(1) For the purposes of this Section—

(a) “judicial review costs capping order” means a costs capping order made by the High Court or the Court of Appeal in accordance with sections 88, 89 and 90 of the 2015 Act; and

(b) “the 2015 Act” means the Criminal Justice and Courts Act 2015.

(2) This Section does not apply to a costs capping order under rule 3.19.

(Rule 3.19 makes provision for orders limiting the amount of future costs (including disbursements) which a party may recover pursuant to an order for costs subsequently made.)

Applications for judicial review costs capping orders

46.17

(1) An application for a judicial review costs capping order must—

(a) be made on notice and, subject to paragraphs (2) and (3), in accordance with Part 23; and

(b) be supported by evidence setting out—

(i) why a judicial review costs capping order should be made, having regard, in particular, to the matters at sub-sections (6) to (8) of section 88 of the 2015 Act and sub-section (1) of section 89 of that Act;

(ii) a summary of the applicant’s financial resources;

(iii) the costs (and disbursements) which the applicant considers the parties are likely to incur in the future conduct of the proceedings; and

(iv) if the applicant is a body corporate, whether it is able to demonstrate that it is likely to have financial resources available to meet liabilities arising in connection with the proceedings.

(2) Subject to paragraph (3), the applicant must serve a copy of the application notice and copies of the supporting documents on every other party.

(3) On application by the applicant, the court may dispense with the need for the applicant to serve the evidence setting out a summary of the applicant’s financial resources on one or more of the parties.

(4) The court may direct the applicant to provide additional information or evidence to support its application.

Court to consider making directions

46.18 If the applicant is a body corporate, and the evidence supporting its application in accordance with rule 46.17(1)(b)(iv) sets out that it is unable to demonstrate that it is likely to have financial resources available to meet liabilities arising in connection with the proceedings, the court must consider giving directions for the provision of information about the applicant’s members and their ability to provide financial support for the purposes of the proceedings.

Applications to vary judicial review costs capping orders

46.19

(1) An application to vary a judicial review costs capping order must be made on notice and, subject to paragraphs (2) and (3), in accordance with Part 23.

(2) Subject to paragraph (3), the applicant must serve a copy of the application notice and copies of any supporting documents on every other party.

(3) If the application is supported by evidence setting out a summary of the applicant’s financial resources, the court may, on application by the applicant, dispense with the need for the applicant to serve such evidence on one or more of the parties.

 

Practice Direction

Practice Direction 46: Paragraph 10 deals with the above rule and states:

Judicial review costs capping orders under Part 4 of the Criminal Justice and Courts Act 2015: rules 46.16 to 46.19

10.1 Unless the court directs otherwise, a summary of an applicant’s financial resources under rule 46.17(1)(b)(ii) must provide details of—

(a) the applicant’s significant assets, liabilities, income and expenditure; and

(b) in relation to any financial support which any person has provided or is likely to provide to the applicant, the aggregate amount—

(i) which has been provided; and

(ii) which is likely to be provided.

10.2  An application to the High Court for a judicial review costs capping order must normally be contained in, or accompany, the claim form.

 

Criminal Justice and Courts Act 2015

Part 4, that is Sections 84 to 92 deal with Judicial Review proceedings.

These are lengthy sections and can be seen here and the effect is dealt with elsewhere in this piece.

In July 2017 the Judiciary for England and Wales published the Administrative Court Judicial Review Guide 2017 which is available here.

It runs to over 100 pages and deals with the Civil Procedure Rules, Practice Directions, forms, fees, time limits and the whole procedure throughout the life of a Judicial Review.

It is very helpful.

 

Also see:

FIXED COSTS REPORT OVERVIEW: POST 1

FIXED COSTS AND THE BAR: POST 2

FIXED COSTS AND PART 36: POST 3

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

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Written by kerryunderwood

August 14, 2017 at 12:04 pm

Posted in Uncategorized

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