Judicial review reform pulls in both directions

In the last few weeks two different and potentially conflicting reforms to planning and other judicial reviews have been announced, one of which is designed to reduce the number of challenges, but the other is likely to have the effect of increasing them.

Time limits and fees

The government vowed to curb the burgeoning number of judicial reviews (JRs) last year. They have a point - in 2011, 8734 immigration JRs were launched (compared with 2231 in 2004), and only 31 were successful - about 0.4%. Planning JRs have also increased, but not by nearly as much, and about ten times as many are successful.

Following a consultation on time limits in December to January the government responded on 24 April. I summarise the proposals for planning judicial reviews, although they cover other types of judicial review as well.

The general rule of bringing planning judicial review proceedings 'promptly but in any event within three months' is to be changed to 'six weeks'. This brings ordinary planning JRs into line with statutory challenges under the Town and Country Planning Act 1990 and the Planning Act 2008. The pre-action protocol (the steps you are supposed to take before formally making the claim) will be disapplied since this time will be too short to fulfil it.

If the initial review of the case is considered by the judge to be 'totally without merit' on the papers, then the ability to try again at an oral hearing will no longer be available, although a referral on paper to the Court of Appeal would still be possible. I would hope that the only cases to be 'TWM' will be those brought by unrepresented litigants or those who went against the advice of their lawyers.

For those that are able to try again in the High Court, the same fee as for a main judicial review hearing will be payable, i.e. rather more than before, although the main fee will not be payable if the application hearing is successful. The main hearing fee is currently £215 and a consultation took place from November to February on increasing it to £235, with the results yet to be announced. Hardly earth-shattering.

The changes are likely to be implemented by the summer, by a combination of changes to the Civil Procedure Rules and secondary legislation.

The response cryptically refers to "continuing to review the case for further reform, in particular to streamline the process for planning and infrastructure projects, which we are aiming to develop by the summer", which I am trying to find out more about, as it looks related to the Planning Act regime.

Cost award limits

Earlier, the government carried out another consultation from October 2011 to January 2012 on the liability to have to pay the other side's costs if you lose an environmental judicial review (which would include a Planning Act JR). The prompt for this is a different one: the correct implementation of the Aarhus convention on effective public participation in environmental decisions. Aarhus ('ore-hoose') is Denmark's second city (what is it about environmental conventions and Scandinavian second cities?). Under the convention you can't be put off from bringing claims because the cost of doing so is 'prohibitively expensive'.

The government isn't going as far as subsidising the legal costs of bringing claims, but it is proposing both a cap on how much of the other side's costs you'd have to pay if you lost, and on how much of your costs the other side should have to pay if you won.

On 1 April this year, the cap for your exposure was set at £5000 for individuals and £10,000 for organisations, and the cap for the other side's exposure is £35,000 (it being higher since the other side will be a public body, albeit one that might be poorer than a wealthy organisation). These are not be able to be challenged in any particular case.

In related news the European Court of Justice decided a UK case on 11 April that included a view on what 'prohibitively expensive' meant. The Edwards case decided that whether costs were prohibitively expensive was principally an objective test rather than a subjective one (i.e. you think about the average person rather than the actual person in the case in question).

To me the proposals for cost caps that came into force ten days earlier seem to be consistent with the judgement, but there may be fine print that leaves things a little less clear. The case goes back to our Supreme Court for final judgement.

I was asked at the NIPA conference last week if the cost caps may have resulted in the flurry of judicial review claims the week before. I didn't think so in those cases given the timing, but more JRs may well be launched against Planning Act (and other planning) decisions in the future thanks to these changes. The restrictions in bringing claims are unlkely to counteract this fully.