Legal disputes over major developments will be fast-tracked for consideration by a new Planning Court which will be established by this Summer, to support the Government’s long term plan for economic recovery.
The move will see an estimated 400 planning cases a year resolved more quickly by being fast-tracked for hearings with specialist judges, instead of clogging the main Administrative Court. It will support the growing economy by reducing unnecessary and costly legal delays which developers have previously blamed for the collapse of potential major building schemes.
The strong package of reforms to the Judicial Review (JR) system will also include changes to make sure anyone making a JR claim faces a fair level of financial risk – ending the current situation where individuals and campaign groups can cause expensive delays with no cost or risk for themselves.
The changes have been designed to speed up the running of the JR process, while also driving out meritless cases which clog the courts and slow progress for legitimate applications.
Some of the measures will become part of the Criminal Justice and Courts Bill, which has been introduced to Parliament today.
Justice Secretary Chris Grayling said:
‘Judicial Review must continue its role as a crucial check on the powers that be – but we cannot allow meritless cases to be a brake on economic growth. That would be bad for the economy, the taxpayer and the job-seeker, and bad for confidence in justice.
‘These changes will bring balance to the Judicial Review system, so justice is done but unmerited, costly and time-wasting applications no longer stifle progress.’
The plans announced today, following a consultation from September 2012 to November 2012, also include:
- Speeding up appeals in important cases by making it possible more often for them to be considered by the Supreme Court without first going to the Court of Appeal. This change means cases could be resolved months, and in some cases more than a year, quicker.
- Changing the rules around who has to pay the legal bills for cases – so all parties have an equal interest in ensuring unnecessary costs are not racked up. This includes:
- Stopping taxpayers from having to subsidise cases unnecessarily by limiting the use of Protective Costs Orders (PCOs) to exceptional cases with a clear public interest. At present PCOs can be used by claimants to make the defendant authority bear the legal costs regardless of the outcome of the case.
- Ensuring that details of anyone financially backing a JR are disclosed, even if they are not a named party, so that costs can be fairly allocated. In the past backers have used individuals, and even set up new companies, to front JRs – meaning that any assessments by the court of the financial capacity of the applicant have not always been a fair representation.
- Making third parties who join in a JR case as “interveners” responsible for paying their own way - for example when a campaign group applies to become involved in a case already taking place between an individual and an authority. At present other parties in the case can be ordered to cover the legal costs of the intervener. In future these third parties will also have to compensate other parties if they cause them to run up greater legal bills unnecessarily.
- Making applicants who take weak cases to a second chance hearing (known as an oral renewal) pay some of the legal bill encountered by the other side in the process of preparing their defence more often, through changes to the Court Rules. The defendant is often the Government, meaning these costs currently have to be met by taxpayers.
- Stopping JRs which are based on technical flaws in the original decision-making process, when it is highly likely that the end result would have remained the same.
- Targeting legal aid funding at JR cases which have merit, so the legal aid system commands public confidence and credibility.
There has been a huge growth in the number of judicial review applications in recent years, causing the whole system to slow down despite the fact only a small proportion succeed.
Applications more than doubled from 4,300 in 2000 to 12,600 in 2012. Yet, of the 440 which went on to a final hearing without being refused permission, withdrawn or settled in 2011 just 170 went in favour of the applicant. In 2012 the vast majority of applications, more than 10,000, were for immigration and asylum cases – and almost 200 were on planning issues.
Cases often take more than a year to resolve. For planning cases, the average time to resolve an application which went all the way to a final hearing was 370 days in 2011.
The new reforms follow changes to speed up the JR process already implemented by the Government last year, including:
- Halving the time limit for applying for a JR of a planning decision from three months to six weeks.
- Reducing the time limit for applying for a JR of a procurement decision from three months to 30 days.
- Stopping people from having a “second chance” hearing if their initial written application is ruled ;totally without merit’ by a judge and – where a “second chance” hearing is still allowed - introducing a £215 court fee for it.
- Consulting on increasing the initial application fee from £60 to £135 and the fee for a “second chance” or final hearing to £680.
Handling of immigration and asylum JR cases was also transferred in November to the specialist Upper Tier tribunal – making use of its expert judges, and freeing up the High Court which previously heard these cases.
Notes to Editors
- Explanation of the Judicial Review process and fees:
- Judicial Review is a process people (or groups) can use to challenge the lawfulness of decisions or actions of the Executive (including Ministers, local authorities, public bodies and those exercising public functions).
- A full Judicial Review hearing involves a judge reviewing the issue and reaching a judgment based on the evidence presented to them. They can rule that the decision involved should stand, or should be changed partially or fully. There is a fee of £215 for a full hearing, which is proposed to increase to £680.
- When someone wants an issue to go to a JR, they must make a written application to the court for permission (there is an application fee of £60, which is proposed to increase to £135). The merits of the case will be considered at that stage before a decision is made on whether it should be allowed to proceed.
- If the case is not given permission to proceed, the applicant can ask for a “second chance” hearing (known as an oral renewal) where they can present their reasons for wanting a JR to a judge in person. A fee of £215 for this stage was introduced in July 2013 – it was previously free – and Government has proposed increasing this to £680.
- If refused at that hearing, the claimant can appeal to the Court of Appeal.
- Second chance hearings are no longer available, since July 2013, when the written application has been found to be ‘totally without merit’.
- Legal costs in Judicial Review cases:
- In all civil and administrative court cases in England and Wales (including JRs) the losing side is expected to pay the legal bills of the winning side as well as their own, unless specific court rules apply or the judge makes an order otherwise.
- People who think they cannot afford to cover the legal costs of the other side if they were to lose can apply to the judge for a Protective Costs Order (PCO). This means that, if they lost the case, they would only be liable for the other side’s legal costs up to a certain level, set by the judge. They would still be responsible for their own legal costs, unless they were receiving legal aid. The judge will assess the financial means of both sides when considering whether to grant a PCO. This means that in the past the defending side in a JR case, which is often Government, is likely to have to pay their own costs whether they win or lose, putting the cost onto taxpayers.
3.Treasury Solicitors’ initial illustrative assumption is that the costs to tax payers in legal costs are between £1,500 and £25,000 to defend each case against the Government. The figures on volumes and timeliness are calculated from Administrative Court data, which is available on GOV.UK
4.The consultation Judicial Review: proposals for further reform ran for eight weeks and received 325 responses from September to November 2013.Copies of consultation document and the Ministry of Justice response, published 5 February 2014.
5.Several of the changes (including the financial measures, Supreme Court change and challenges based on technical flaws) are being made in primary legislation and have been included in the Criminal Justice and Courts Bill which was introduced to Parliament today. Details of the Bill are available on GOV.UK
6.Other changes including the Planning Court, costs of oral permission hearings and the availability of legal aid for judicial review,will be made later this year through secondary legislation or amendments to court rules.
7.Following the consultation, the Government will not be taking forward the previously proposed reforms to rules around who is allowed to apply for a JR or altering the availability of legal aid in planning cases .
8.Any changes will reflect the Aarhus Convention, which gives organisations who promote environmental issues and certain individuals the right to make challenges on environmental issues.
9.For more information contact the Ministry of Justice press office on 0203 334 3536. Follow us @MoJPress