The Cash Behind The Claim: Consultation By Ministry Of Justice On Identifying How Judicial Review Claims Are Being Funded

The Ministry of Justice has recently run a consultation on ways to curb the increasing number of applications for judicial review whilst protecting the public's access to justice. One method is to create greater transparency in how judicial review claims are being funded.

The costs of responding to judicial review claims are rising and the Government are trying to limit the potential for third party funders of judicial review claims to avoid liability for litigation costs where a claim is unsuccessful.

Judicial review is the process whereby decisions made by public bodies such as NHS Trusts are reviewed by the Courts. A patient might seek judicial review of a decision to withhold a particular type of drug or treatment and the Court will then look at whether the process by which the public body came to that decision was correct. The Criminal Justice and Courts Act 2015 came into effect on 12 February 2015 introducing a series of reforms to judicial review proceedings and the Government is now considering proposed amendments to the Civil Procedure Rules to give effect to the statutory changes.

Individuals looking to bring a claim for judicial review of a decision need to first establish that they have permission to bring a claim. It can be time consuming and expensive for the NHS to respond to an application for permission, let alone defend a subsequent claim. One of the proposals being discussed is the introduction of a declaration of the applicant's source of funding on an application for permission. The applicant may also be required to estimate the likely total cost of the judicial review. This will provide the Court with a more detailed picture of the applicant's financial circumstances and allow the Court to make a fully informed decision regarding how the costs of the litigation should be allocated. The Court is under an obligation to consider making a third party costs order against the funder. The requirement, if introduced, is likely to be limited to circumstances where the funding or likely funding in connection with an application for judicial review is above £1,500. This is intended to capture any funding arrangements where the applicant may be vulnerable to third party control and to omit from consideration any funding from small...