Public law charity challenges MoJ costs reforms, predicts fewer challenges

A charity that aims to improve access to public law remedies has taken the first steps to challenge the government’s reforms for civil litigation funding and costs, claiming that the plans will have a “seriously detrimental effect” on the ability of individuals and groups to challenge unlawful conduct by public bodies.

The Public Law Project (PLP), advised by law firm Leigh Day & Co, this week sent a letter before claim to Justice Secretary Ken Clarke.

The PLP said it did not object in principle to Lord Justice Jackson’s recommendations and the Ministry of Justice’s proposals to abolish the recoverability of conditional fee agreement success fees, so long as the changes were introduced in conjunction with the judge’s suggested countervailing factors.

The charity highlighted the fact that there would be costs protection in personal injury cases, so that claimants who are not wealthy do not have to pay the substantial legal costs of defendant bodies if they lose the claim.

However, under the MoJ's plans costs protection will not be introduced for most claimants bringing judicial review proceedings. “The net result is that there will be a significantly detrimental effect upon the ability of the ordinary individual, the representatives of civil society and the public interest to obtain access to justice in this constitutionally vital area,” the PLP warned.

The charity said it was “not lawful, on the basis of perfunctory consultation and absence of any reasoned justification, for the MoJ to take such a radically different path from that recommended by Lord Justice Jackson”.

The PLP also claimed that the proposals themselves were unlawful in view of the UK’s common law and international law obligations to ensure access to justice to the citizen.

Diane Astin, Director of PLP, said: “PLP is very disappointed that the MoJ are proposing to abandon important recommendations made by Lord Justice Jackson. Judicial review, as the MoJ recognises, is ‘a crucial way of ensuring that state power is exercised responsibly’.”

“PLP believes that the MoJ’s decision not to implement Lord Justice Jackson’s proposals on costs protection for most claimants in judicial review claims has not been thought through. The proposed changes are likely to have a seriously detrimental effect on the ability of individuals and groups to challenge unlawful conduct by public bodies.”

Astin urged the government to withdraw its proposals for judicial review, pending a thorough consultation on the likely impact on access to justice.

Jamie Beagent of Leigh Day & Co said:
“Access to justice is a fundamental right. The Ministry of Justice’s proposals will seriously hamper that right. To undermine a key means by which the public can access the constitutional court of this country without introducing the balancing reforms recommended by Lord Justice Jackson is unjustifiable and, unsurprisingly, the MoJ has been unable to provide any justification.”

Philip Hoult