Reform of Judicial Review: Proposals for the provision and use of financial information

Closed 15 Sep 2015

Opened 21 Jul 2015

Results Updated 7 Jul 2016

Following the consultation on ‘Reform of Judicial Review: proposals for the provision and use of financial information’ in late 2015, the government has set out how it intends for the reforms to be implemented, and is seeking views on one further aspect.

The government’s intention remains to have greater transparency in how judicial reviews are funded, limiting the potential for third-party funders to avoid their appropriate liability for litigation costs and making sure that when costs capping orders are made – limiting or extinguishing a party’s costs liability – they are made in appropriate cases.

To implement these reforms, changes to procedural rules are required. The consultation sought views on the government proposals for those changes, and 39 responses were received. Having considered each response carefully, the government intends to retain the general approach on which it consulted whilst amending some points of detail, such as:

  1. the information a claimant, which is a corporate body which is unable to demonstrate that it is likely to have financial resources to meet liabilities arising in connection with the claim, must provide on an application for permission;
  2. the suggested threshold amount; and
  3. the court’s ability to make a costs capping order when not all of the financial information required by the relevant rules has been provided by the applicant.

Following the consultation, and discussions with senior stakeholders, the government has decided to invite further views on one aspect of the reforms, regarding the provision to other parties of financial information provided under section 85 of the Criminal Justice and Courts Act 2015. The invitation to provide further views is set out at Part B of this report, and it does not affect and is distinct from our proposals on costs capping orders under sections 88 to 90 of the 2015 Act.

Responses to those further questions should be provided by Wednesday 18 August, either to Judicial Review Reform, 3.38, Ministry of Justice, 102 Petty France, London, SW1H 9AJ or by email at judicialreviewreform@justice.gsi.gov.uk.

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Overview

Judicial review is a process by which individuals, businesses and other affected parties can challenge the lawfulness of decisions or actions of public bodies, including those of Ministers, local authorities and those exercising public functions.

It is a largely judge-developed process and can be characterised as the rule of law in action, providing a key mechanism for individuals to hold the Executive to account.

Why We Are Consulting

The government’s intention is to have greater transparency in how judicial reviews are funded, limiting the potential for third party funders to avoid their appropriate liability for litigation costs and making sure that when costs capping orders are made – limiting or extinguishing a party’s costs liability – they are made in appropriate cases.

This consultation follows an earlier consultation which ran between September and November 2013, and which can be found alongside the government response at https://consult.justice.gov.uk/digital-communications/judicial-review.  The government committed to introducing a number of reforms, including in relation to the provision of information on the funding of judicial reviews and replacing the protective costs order regime with a new system of costs capping orders. 

Parliament subsequently legislated for these specific reforms in sections 85 to 90 of the Criminal Justice and Courts Act 2015.  During the passage of the Act through Parliament, the Government committed to running a consultation about the provision of financial information to the court on application for judicial review to make sure courts would have the information they need when deciding how to award costs.     This consultation gives effect to that commitment, and we are also consulting on the financial information that should be provided on application for a costs capping order.

To implement these reforms, provision in Civil Procedure Rules and Tribunal Procedure Rules is required. This consultation paper seeks views on the government’s proposals for the rules setting out the financial information required from a claimant with the application for judicial review and when applying for a costs capping order. It seeks views on the proposals for rules to set out:

 

a.    that a declaration of funding sources is required on an application for permission;

b.    that details of third party funding or likely funding in connection with an application for judicial review need not be provided where the funding is below a threshold of £1,500; and

c.    that a more detailed picture of the applicant’s financial circumstances is required on application for a costs capping order than on application for permission.

Audiences

  • Businesses
  • Citizens
  • Voluntary organisations
  • Local authorities
  • Litigants
  • Charities
  • Government departments
  • Legal professionals
  • Judiciary
  • Immigration removal centre staff
  • Prosecutors
  • Court & Tribunal staff
  • Legal professional bodies
  • Public listed company
  • Public sector
  • VCSE/Charity/Mutual
  • Think tanks
  • Academics
  • UK policy institutions
  • EU policy institutions
  • UK politicians
  • Journalists
  • Environmental NGOs

Interests

  • Environment
  • Courts
  • Public Bodies
  • Law
  • Legal aid
  • Access to justice
  • UK Law