Why not change the rules on judicial review?

Predeterminiation iStock 000016468646Small 146x219David Cameron’s remarks on judicial review, and the consultation report that followed, need a thoughtful response and local authorities will find much to be pleased about if they dig a little deeper into the proposals, believes Graeme Creer.

On 13 December 2012, the Ministry of Justice issued its consultation paper on judicial review, giving a greater insight into the Government’s intentions following the Prime Minister’s comments in his CBI speech on 19 November regarding the “massive growth industry of judicial review”.

The proposals contained in the consultation cover three principal areas: reduced time limits for bringing a judicial review relating to procurement or planning; removal of the right to an oral renewal in certain situations; and new fees for oral renewal.

The consultation closed on 24 January 2013. As reported by the Local Government Lawyer, the Law Society and the Bar Council have criticised the report proposals, believing that judicial review was "too important to be impaired by hasty reforms" and warning that the proposals would not "achieve the aims of speed and efficiency". The responses to the consultation which have been published by a range of organisations and law firms appear to have been almost universally critical of the proposals.

Some commentators have questioned whether these reforms will make a difference – the vast majority of judicial reviews are in the field of immigration and asylum, and changing the rules for these will have little or no impact on growth. Others believe the proposals will damage the rights of individuals, and changing the rules will inhibit the ability of residents, NIMBYs and special interest groups to challenge decisions taken by public bodies. But in 2011 there were 2,213 judicial reviews outside immigration, asylum and criminal law, 68% were rejected at permission stage, and only 87 were ultimately successful [1]. That is a lot of litigation aimed principally at grabbing headlines and stalling the implementation of perfectly legal decisions.

Local authorities know all about this. They have to take unpopular planning decisions which reflect national planning policies. They have to cut budgets, close libraries and day centres, reduce care services and increase charges, to meet national spending reduction targets. Every time, there is a real risk of judicial review and the attendant cost and delay. Administrative and local government law is complex. It is not hard to find a peg on which to hang a legal argument. All too often this is just part of the local political debate.

So, let’s consider the specific proposals that have been made.

First, the paper addresses 'the time limit for bringing proceedings’. At the moment the basic rule is that you have to start proceedings promptly and in any event within three months, although the court has a residual discretion to allow more time, and you have to allow a few weeks for the pre-proceedings correspondence. The courts blow hot and cold on what ‘promptly’ means, and when the three months should start, and it seems that you are entitled to the full three months if European law is engaged.

This is a particularly difficult issue if a pressure group takes time finding an impoverished claimant, who will be entitled to legal aid and engage the court’s sympathy, but who did not know about the decision until the pressure group told him. The consultation report recommends amending the Civil Procedure Rules so that they provide that claims for judicial review in procurement cases should be brought within 30 days of when the claimant knew or ought to have known of the grounds for the claim, and claims for judicial review of planning decisions of the local authority should be brought within six weeks of when the claimant knew or ought to have known of the grounds for the claim. This clarity is welcome - a shorter time limit will harm no one, and focus the mind. If a decision is important to you, and you know about it, you should be able to rally support and engage lawyers straight away.

Secondly, let’s consider the introduction of fees for judicial review proceedings. This proposal in effect, is to charge more for reviews so people think twice about time-wasting. At the moment it costs £60 to start proceedings and £215 to press on if permission is given. The report suggests a new fee to be brought in for oral renewals (challenges to the refusal of judicial review) to match the judicial review fee of £215 (potentially rising to £235 under separate proposals). The further fee for a full judicial review would be waived where the application for permission is successful. I’m not sure this has been increased substantially enough to be considered a deterrent - the wealthy will not care and legally-aided claimants will not be affected. Perhaps this is more about money making.

The third set of reforms addressed by the consultation paper concern applying for permission to bring a claim, which could also be referred to as “instead of giving hopeless cases up to four chances to appeal a decision, we will halve that to two.”

The paper recommends scrapping oral renewals for any case “which has already had a hearing before a judge on substantially the same matter, for example, at a court, tribunal or statutory inquiry” and for any case “where the application for permission has been ruled to be 'totally without merit' by a judge on the papers”. There is a lot of sense in this. At the moment, when the claimant seeks permission, a judge will commonly consider the application without a hearing. If permission is refused, the claimant can ask for the decision to be reconsidered at a hearing. If there is an appeal to the Court of Appeal, the same thing happens: a decision on the papers with the application renewed and an oral hearing. This takes months, while costs escalate, and it is all at permission stage, so the judge who first saw the papers will have thought that there was not even an arguable case!

So, for all the tough talking and critical responses, there is nothing fundamentally objectionable about the plans. Local authorities should have the nerve to take the debate away from party politics and World War Two rhetoric and make the case for making their lives just a little bit easier.

Graeme Creer is a partner at Weightmans LLP. He can be contacted on 0151 243 9834 or by This email address is being protected from spambots. You need JavaScript enabled to view it..



[1] Guardian 19 November 2012