MoJ mulls tighter standing test, specialist planning court in latest JR reforms

A tighter test on standing, revised costs rules and a specialist planning court are among a package of proposals for reforming the judicial review process unveiled by the Ministry of Justice.

The MoJ said it was seeking views on who was able to apply for judicial review, including whether the process should be restricted to those who have a direct interest in the case.

This would be “so that [it] cannot be exploited for campaigning or publicity purposes, at the expense of others”, the MoJ said.

In the consultation paper, Judicial Review: proposals for further reform, the Ministry said the Government was “concerned that the wide approach to standing has tipped the balance too far, allowing judicial review to be used to seek publicity or otherwise to hinder the process of proper decision-making”.

It added: “The concern is based on the principle that Parliament and the elected Government are best placed to determine what is in the public interest. On that basis, judicial review should not be used to undermine this role by putting cases before the courts from individuals with no direct interest in the outcome.”

A more direct and tangible interest in the matter to which the application for judicial review relates would exclude persons who had only a political or theoretical interest, such as campaigning groups.

The MoJ said it accepted that the requirements of EU law and the Aarhus Convention would mean that cases which raised environmental issues would need to be approached differently.

The consultation paper does not put forward a revised test for standing, but asks where existing alternatives in other areas would provide a reasonable basis for the new approach or whether other options should be considered.

The reform package would also see changes to “rebalance the system of financial incentives so that those involved have a proportionate interest in the costs of the case”.

The MoJ said it wanted views on the introduction of a principle that the costs of an oral permission hearing should usually be recoverable and that it should be possible for an unsuccessful claimant to be ordered to pay the defendant’s reasonable costs of defending the unsuccessful application.

“This might involve the costs of preparation and representation at the oral hearing,” the consultation paper said. “The Government considers that a successful defendant should as a general rule not have to bear the costs of defending the claim.”

There are also proposals to amend the rules on wasted costs orders, protective costs orders and interveners’ costs.

The ‘rebalancing’ meanwhile includes the MoJ’s alternative approach to payment of legal aid providers, after it announced yesterday that it was revising its original plans on payment for permission work in judicial review cases.

The alternative would see providers only paid for work carried out on an application for permission (including a request for reconsideration of the application at a hearing, the renewal hearing or an onward permission appeal to the Court of Appeal), if permission is granted by the court.

However, the Government would also introduce a discretion to permit the Legal Aid Agency to pay providers in certain cases which conclude prior to a permission decision. The discretion would involve the application of criteria to cases where the provider has been unable to secure a costs order or costs agreement as part of a settlement.

“The discretionary criteria would be used to determine the meritorious cases in which payment should be made, while maintaining the policy objective not to pay for weak cases,” the MoJ said, adding that the proposal would only apply to issued proceedings.

The consultation paper, which can be viewed here, also considers:

• The introduction of a specialist planning chamber in the Upper Tribunal, with expert judges and streamlined processes, to hear cases relating to major developments projects.
• The scope for making greater use of ‘leapfrogging’ orders, so that appropriate cases can move quickly to the Supreme Court, without first having to go to the Court of Appeal.
• The use of judicial review to resolve disputes relating to the public sector equality duty and whether there were suitable alternative mechanisms for resolving disputes.
• How the courts deal with minor procedural defects, and whether this can be improved. Two options are put forward in relation to ‘no difference’ arguments: bringing forward the consideration to earlier in the process and providing for a different threshold of whether the flaw would have affected the outcome.
• Further limits on local authorities’ abilities to challenge nationally significant infrastructure projects;
• Whether it was appropriate to provide legal aid for certain statutory challenges under the Town and Country Planning Act 1990.

The Ministry said that most of the changes would require primary legislation, and so would be debated by Parliament before implementation. Any changes would also reflect the Aarhus Convention.

Justice Secretary Chris Grayling said: “We want to make sure judicial review continues its crucial role in holding authorities and others to account, but also that it is used for the right reasons and is not abused by people to cause vexatious delays or to generate publicity for themselves at the expense of ordinary tax-payers.”

The latest reforms follow on a number of measures implemented by the Government in July this year. These included:

• Revised time limits for bringing judicial review claims of planning and procurement decisions; and
• Where an application for judicial review is recorded as totally without merit, the claimant would not be able to request an oral reconsideration of the refusal of permission and that any appeal of that decision is to the Court of Appeal on the papers only.

The MoJ said the Government would shortly introduce the £215 court fee for those seeking a ‘second chance’ hearing. The initial application fee is also to be increased.