Judicial Review Reform Pulls In Both Directions

Today's entry contrasts the moves to reform judicial review time limits and challenges with those to cap liability for costs.

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...