Judicial review: key developments

RCJ and Supreme Court 146x219The LexisPSL Public Law team provides a summary of key developments in judicial review and sets out some important dates for practitioners’ diaries.

This summer has seen a number of announcements and updates in relation to judicial review procedure, including the increase of certain fees payable in judicial review proceedings, the commencement of further provisions of the Criminal Justice and Courts Act 2015 (CJCA 2015) relating to judicial review, amendments to the CPR and also the release of new comprehensive guidance from HM Courts & Tribunals Service.

Administrative Court Judicial Review Guide 2016

HM Courts and Tribunal Service issued the Administrative Court Judicial Review Guide 2016, bringing together relevant statutory provisions, rules of procedure, practice directions, and case law on procedural aspects of judicial review. The guide is also designed to ensure consistency and efficiency in the Administrative Court by tackling bad practices, including late filing of bundles, authorities and skeleton arguments. The guidance states that sanctions may be applied to parties if they fail to comply.

Fee increases in civil proceedings in force on 25 July 2016

The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016, SI 2016/807, was made on 22 July 2016 and came into force on 25 July 2016. SI 2016/807 provides for the increase of certain fees charged in connection with judicial review proceedings in the Upper Tribunal (Immigration and Asylum Chamber) and certain civil proceedings, and fees in connection with civil proceedings in the magistrates’ courts.

Despite concerns raised at the consultation stage, the proposals were taken forward, taking into account considerations of access to justice, the level of the increases and the availability of the fee remissions scheme. The majority of fees are increased by a rate above the level of inflation. In light of the financial circumstances and reductions to public spending, the government considered the increases necessary in order to ensure adequate funding for courts and tribunals and access to justice in the long term.

SI 2016/807 amends the relevant provisions of the Civil Proceedings Fees Order 2008, SI 2008/1053, and the Upper Tribunal (Immigration and Asylum Chamber) (Judicial Review) (England and Wales) Fees Order 2011, SI 2011/2344 accordingly. Subject to certain variations as set out in the Orders (as amended), the key revisions in relation to fees in judicial review proceedings are as follows:

  • permission to apply: £154
  • request to reconsider at a hearing a decision on permission: £385
  • permission to proceed after permission has been granted: £770 (reduced to £385 where permission has been granted at a hearing and the fee for request to reconsider has been paid)
  • permission to proceed (claim not started by judicial review procedure): £154

Full details are set out in the revised Orders.

Criminal Justice and Courts Act 2015 provisions and CPR changes in force on 8 August 2016

Criminal Justice and Courts Act 2015 (Commencement No 4 and Transitional Provisions) Order 2016, SI 2016/717, made on 6 July 2016, sets out a number of provisions of the Criminal Justice and Courts Act 2015 (CJCA 2015) which came into force on 8 August 2016, relating to appeals and judicial review:

  • CJCA 2015, ss 64 to 65—making provision for appeals to the Supreme Court from the Upper Tribunal and the Employment Appeal Tribunal subject to certain conditions
  • CJCA 2015, ss 84(4) to 84(6)—relating to the likelihood of a substantially different outcome for judicial review applicants in the Upper Tribunal
  • CJCA 2015 ss 88 to 90—new provisions for the making of costs capping orders (to replace protective costs orders) in judicial review proceedings in the High Court and the Court of Appeal

The new provisions in Part 4 of the CJCA 2015 dealing with costs capping orders in judicial review proceedings necessitated changes to CPR 3, CPR 46 and CPR PD 46. The Civil Procedure (Amendment No.2) Rules 2016, SI 2016/707 were released accordingly, setting out the necessary CPR changes that also came into force on 8 August 2016, subject to transitional arrangements. See Lexis®PSL Dispute Resolution News Analysis: CPR changes in August 2016—judicial review costs capping orders.

Further consultation on the provision of financial information in judicial review

Following its earlier consultation on proposals for the provision and use of financial information in judicial review, the Ministry of Justice released an online survey seeking further views on one aspect of the proposals regarding the provision of financial information to other parties in judicial review proceedings under CJCA 2015, s 85. The survey closed on 18 August 2016.

The original consultation sought views on proposed rules concerning financial information required in applications for judicial review and costs capping orders, including a declaration model for the provision of financial information (under CJCA 2015, ss 85 and 86) upon an application for permission to bring a judicial review claim.

In its response to the consultation, the Ministry of Justice confirmed it would proceed with the proposals, with amendments, for instance the financial threshold for declaration of third party funding would be increased from £1,500 to £3,000.

CPR changes in October 2016

The Civil Procedure (Amendment No.3) Rules 2016, SI 2016/788 have been released setting out the CPR changes that will come into force on 3 October 2016. The main change is the replacement of existing CPR 52 (appeals) with a new Part 52 and consequential changes to other parts of the CPR and transitional provisions.

This update written by Holly Nankivell was originally published in the LexisPSL Public Law Monthly Highlights for July. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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