Judicial Review: reforms made and more to come

Judicial review enables parties to challenge the decision-making of public bodies via the courts to ensure that they act lawfully and fairly. Its use has significantly increased in the last decade. This increase in the number of legal challenges against public bodies prompted the Ministry of Justice, in December of last year, to propose reform of the JR procedure.

Reforms made

On 1 July 2013, CPR 52 and 53 were amended to implement the proposals for reform of the Judicial Review procedure, published by the Government on 23 April 2013. Those amendments included:

• Judicial review appeals: where permission to apply for judicial review has been recorded as "totally without merit", any appeal of that decision is to the Court of Appeal on paper only; the claimant may not request an oral reconsideration of the decision.
• Time limits: the claim form for an application relating to a planning decision must be filed within six weeks (previously three months) from the date when grounds for the application first arose and within 30 days in procurement cases.
• The introduction of a fee for an oral renewal hearing.

For further details, and the reasoning behind these reforms, please read the Ashurst briefing.

Future reform

Further reform was promised and earlier this month the government announced a public consultation on proposals to tackle the burden that the growth of unmeritorious judicial reviews is placing on the courts. Key proposals include:

• Procedural flaws: changing how the courts determine judicial review claims alleging minor procedural defects that would have made no difference to the final decision.
• Standing: reforming the test for standing (that is, who is able to bring a judicial review) from one of "sufficient interest", to mirror the requirement for "direct and individual concern" in EU law or the "victim" tests under the European Court of Human Rights.
• Appeals: speeding up appeals to the Supreme Court in important cases.
• Costs: changing the approach, including: the introduction of a principle that an unsuccessful party should normally bear the costs of any oral permission hearing; to widen the scope for making wasted costs orders; to reduce the availability of protective costs orders; and to address the costs arising from interveners who are not directly affected by the claim.
• Planning: introducing a new specialist "planning chamber" to hear challenges and judicial reviews relating to major developments to be taken only by expert judges.

A copy of the consultation paper is available from https://consult.justice.gov.uk/digital-communications/judicial-review. The consultation period closes on 1 November 2013.

Please click on the links below for the other articles in the commercial litigation newsletter

• Jackson update
• Hot-tub: lessons from Australia
• The importance of clarity when it comes to the terms of, and costs associated with, settlement
• Third party funder entitled to terminate funding agreement
• Asymmetric jurisdiction clauses valid as a matter of English law
• Service: retrospective validation of the claim form permitted and receipt by fax sufficient for French courts to be seised
• Disclosure and privilege update: increasing transparency and guidance on the dominant purpose test
• Can the corporate veil ever be pierced?
• Part 36: valid acceptance and "near-miss" offers
• CPR 66th update
• Chancery Modernisation Review
• Collective actions update: "opt-out" coming to a competition claim near you
• Courts to become self-financing?