Government defends JR reforms, attacks impact of challenges on development

The Government has defended its reforms to judicial review, saying it is “particularly keen to reduce the extent to which legal challenge unduly hinders economic development and regeneration”.

In its response to a report from the House of Lords Select Committee on the Constitution, the Government acknowledged that much of the growth in judicial review had been in immigration and asylum cases, but said that between 2000 and 2013 there was a 27% increase in other civil judicial reviews.

It added that:

• In 2012 only around 1,500 (20%) of the 7,700 applications considered for permission on the papers or at oral renewal were granted permission to proceed to judicial review.
• Between October 2012 and March 20141 around 30% of judicial reviews considered for permission on the papers or at oral renewal were found to be totally without merit.
• In 2012 the average time to permission was around 100 days, around 220 days to oral renewal and around 330 days to a final hearing.

Although the Government said it would not comment on specific cases, it cited examples brought to its attention during the consultation process as including “a challenge to planning permission which was refused permission at three stages causing significant delays, and a challenge to the ‘spare room subsidy’ which the court considered a policy objection under the guise of a process challenge”.

The response also said there had been a number of judicial reviews which had resulted in considerable delay to development projects, including infrastructure, housing, retail and residential developments.

It gave as examples:

• the expansion of Bristol airport “which was delayed by around 36 weeks”;
• a £38m retail development in East London, due to create 500 jobs, “which was delayed by 15 months at considerable cost to the developer and local economy”;
• a development of 360 dwellings in Carmarthenshire “which was delayed by around 18 months by an unsuccessful judicial review”;
• a supermarket development in Skelton “which was challenged by a rival store, delaying the development by around 6 months. The judicial review was found to be totally without merit”.

The Government expressed frustration as well at the way in which the unsuccessful judicial review against the decision of the Secretary of State for Justice to grant a licence to exhume human remains that turned out to be those of Richard III was brought by a limited company – the Plantagenet Alliance Limited – which was formed for the purpose of bringing the litigation.

“The claimant company sought, and was granted, an absolute protective costs order on the basis that it did not have any assets, transferring the risk from the director of the company to the taxpayer," the response said. “This meant that the director – the ‘real’ claimant – was protected from cost liability.

“Despite winning the judicial review on all grounds, the absolute protective costs order granted in the claimant’s favour means that the Government is unable to recover any costs from the Plantagenet Alliance Limited. This applies also to the other defendants in the case, the University of Leicester and Leicester City Council.”

The Government meanwhile rejected the select committee’s contention that clause 70 of the Criminal Justice and Courts Bill – requiring the court or tribunal to refuse permission or a remedy where it was satisfied that a complained of flaw would have been ‘highly likely’ to have made no difference to the outcome of the process in question for the applicant – risked undermining the rule of law.

It said ‘highly likely’ still presented a high threshold to meet and took into account development of the case law in this area which established that ‘mere probability’ was not sufficient.

The Government argued that its approach was proportionate to making sure that access to justice was provided for those cases which were more than academic or hypothetical and that resources could be properly directed to those meritorious cases likely to make a difference.

It said it did not agree that clause 70 resulted in a significant risk that substantially unlawful action will go unremedied. “The courts have previously established a ‘no difference’ principle and consider such matters already, sometimes at the permission stage.”

The response also addressed the committee’s comments in relation to ‘leapfrogging’ to the Supreme Court, ‘interveners and costs’ and ‘capping of costs’.