Bar Council response to the Judicial Review: proposals for further reform consultation paper

Transcription

1 Bar Council response to the Judicial Review: proposals for further reform consultation paper 1. This is the response of the General Council of the Bar of England and Wales (the Bar Council) to the Ministry of Justice consultation paper entitled Judicial Review: proposals for further reform The Bar Council represents over 15,000 barristers in England and Wales. It promotes the Bar s high quality specialist advocacy and advisory services; fair access to justice for all; the highest standards of ethics, equality and diversity across the profession; and the development of business opportunities for barristers at home and abroad. 3. A strong and independent Bar exists to serve the public and is crucial to the administration of justice. As specialist, independent advocates, barristers enable people to uphold their legal rights and duties, often acting on behalf of the most vulnerable members of society. The Bar makes a vital contribution to the efficient operation of criminal and civil courts. It provides a pool of talented men and women from increasingly diverse backgrounds from which a significant proportion of the judiciary is drawn, on whose independence the Rule of Law and our democratic way of life depend. The Bar Council is the Approved Regulator for the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board. 4. The Bar Council has the unique advantage of representing advocates appearing on all sides of judicial review proceedings for claimants, for the public bodies whose decisions are under challenge, for interested parties whose position is affected by the outcome of the case, and for interveners. So we are able to bring a global perspective to the issues raised by this consultation. 5. Throughout the Consultation Paper are indications that judicial review is regarded as an inconvenience or hindrance for government and its economic growth agenda. We fear that the tone of the Paper fails to recognise the central role judicial review plays in the constitutional order. The ability of the court to examine the legality of executive decisionmaking and in particular to ensure that government is conducted within the four corners of the powers conferred by Parliament -- is a cornerstone of democracy and the rule of law. From that standpoint we are concerned that these proposals appear in the immediate wake of another set of reforms to judicial review, some of which (especially the new rules on time limits and the introduction of a fee for oral renewals) have far-reaching potential to have an 1 Ministry of Justice 2013 Judicial Review: proposals for further reform

2 adverse impact on access to court. It would make sense to await and assess the effects of those changes, gauging their benefits and impacts against their stated aims, before proposing a raft of new reforms with even greater potential to stifle the effectiveness of judicial review. We therefore urge the Government to withdraw the present proposals for the time being, pending an evidence-based appraisal of the recent round of changes. Judicial review is too important to be placed at risk by precipitate policy-making. Our detailed comments, below, should be read subject to that overarching concern. Question 1: Do you envisage advantages for the creation of a specialist Land and Planning Chamber over and above those anticipated from the Planning Fast-Track? Question 2: If you think that a new Land and Planning Chamber is desirable, what procedural requirements might deliver the best approach and what other types of case (for example linked environmental permits) might the new Chamber hear? Question 3: Is there a case for introducing a permission filter for statutory challenges under the Town and Country Planning Act? Question 4: Do you have any examples/evidence of the impact that judicial review, or statutory challenges of government decisions, have on development, including infrastructure? Question 5: More generally, are there any suggestions that you would wish to make to improve the speed of operation of the judicial review or statutory challenge processes relating to development, including infrastructure? Question 6: Should further limits be placed on the ability of a local authority to challenge decisions on nationally significant infrastructure projects? Question 7: Do you have any evidence or examples of cases being brought by local authorities and the impact this causes (e.g. costs or delays)? 6. With the exception of Question 8 (see below), this section of the Consultation Paper is concerned with specialised questions arising in the context of town and country planning. The Bar Council is content for the relevant specialist bar association, PEBA, to represent the views of practitioners in that field. So we do not comment in this paper on Questions 1-7. Question 8: Do you have views on whether taxpayer funded legal aid should continue to be available for challenges to the Secretary of State s planning decisions under sections 288 and 289 of the Town and Country Planning Act 1990 where there has already been an appeal to the Secretary of State or the Secretary of State has taken a decision on a called-in application (other than where the failure to fund such a challenge would result in breach or risk of a breach of the legal aid applicant s ECHR or EU rights)? 8. This question, by contrast, although arising in the context of planning cases, raises an access to justice issue of wider importance. We do not believe that the Government has made a convincing case for change. Individuals ought to have access to the courts if they are at

3 immediate risk of losing their homes as a result of the proceedings in question. Legal aid ought in principle to be available to assist those who would otherwise be denied access to a judge. Questions 9 to 11: Standing 9. These questions relate to the important issue of the basis on which claimants are to be judged to have sufficient interest or standing to bring a claim for judicial review challenging an alleged breach of the law by a public body. The Consultation Paper rightly observes, in paragraph 74, that the courts have taken a more expansive approach over recent years. However, the Bar Council regards this development as one of the cornerstones of a modern system of administrative law, and an important constitutional guarantee that there are not areas of activity by the executive which are beyond the reach of judicial control because no one is in a position to challenge alleged illegality. Lord Diplock is widely regarded as one of the most influential judges in the development of this modern system; two landmark judgments of his in the GCHQ case and in ex parte IRC are careful expositions of the fundamental principles involved. In ex parte IRC [1984] AC 617 he said (at p644):- It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney- General, although he occasionally applies for prerogative orders against public authorities that do not form part of central government, in practice never does so against government departments. It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge. 10. The Bar Council regards this as a fundamental statement of constitutional principle. For the reasons set out below, it considers that a change in the standing test to any of the alternative formulations set out in the Consultation Paper would either create fundamental lacunae or achieve nothing. Put shortly, it is unacceptable to create a class of executive action which cannot be challenged because no claimant meets the new test for standing to bring a judicial review. 11. The point can be illustrated by one of the leading cases on standing, ex parte World Development Movement [1995] 1 WLR 386, cited in paragraph 76 of the Paper. The subject matter of the challenge was a grant of overseas aid to the Government of Malaysia. To state the obvious, the grant was payable out of UK taxation. But if the WDM had not been held to have had standing to bring a challenge there would have been no alternative claimant. It is apparent that the Court regarded the absence of any other responsible challenger as an important factor in deciding that WDM did have a sufficient interest, as it had done in the earlier case of ex parte CPAG [1990] 2 QB 540, in a social security context to which this response returns shortly below.

4 12. The modern approach to standing has enabled challenges to be brought in a large number of contexts, from a wide variety of different social and political perspectives. The challenge brought by Lord Rees-Mogg, referred to in paragraph 68 of the Paper, was to the entry into the Maastricht Treaty. As is well known, Mrs Gillick instigated important proceedings intended to clarify the ability of a health authority to give contraceptive advice to girls under 16. In Mrs Gillick s case Lord Scarman commented: Mrs Gillick, even though she may lose the appeal, has performed a notable public service in directing judicial attention to [these] problems... of immense consequence to our society. Mr Blackburn had standing to challenge the approach of the GLC to obscene publication, there are many other examples. 13. In social security, the willingness of the courts to award standing to an NGO has had a real utility. There is a class of case which can be described as the disappearing claimant. A government department adopts an approach to the time taken to decide a claim which is arguably unlawful. Whenever an individual claimant complains, his claim is settled, but the underlying practice is unchanged. The legality of the practice itself never reaches the court. This was the concern that lay behind the CPAG case referred to above, in which CPAG was able to challenge the underlying practice. There are other contexts in which similar issues arise delay in issuing status papers to refugees, for example. 14. It is possible to deal with some disappearing claimant issues if the court is willing to continue to hear a challenge brought by an individual even though that challenge has become academic on the facts of the case. But it is difficult to see why this approach should be regarded as any more acceptable than the recognition of standing by an NGO. It leaves the individual claimant with the burden of litigating an issue in which s/he has no continuing interest. And if some solution is not found, one is back at the basic issue the existence of a class of executive decision which is beyond the reach of the courts and the rule of law. 15. Lord Diplock s remarks in ex parte IRC, set out above, refer to relator actions brought by the Attorney General. It seems unlikely that the Attorney would welcome a situation in which his relator was the only solution to this kind of problem or that in practical terms the widespread use of relators is likely to actually come about. 16. The last sentence of paragraph 80 of the Paper indicates that the changes it proposes should require a more direct and tangible interest in the matter to which the application for judicial review relates. That would exclude persons who had only a political or theoretical interest, such as campaigning groups. This objective, if attained, would reverse the approach taken by Lord Diplock in ex parte IRC. It would create his grave lacuna. 17. The Bar Council does not believe that any of the alternatives canvassed in the Paper overcome this fundamental objection. The Paper itself dismisses a general test of standing such as that required by the ECJ in relation to challenges to EU measures see the last sentence of paragraph 84.

5 18. The next alternative canvassed by the Paper is the victim test. The adoption of this test was highly controversial at the time of its use in the HRA, for precisely the reasons set out above. There would be no victim in the WDM case. CPAG would not be a victim in the disappearing claimant class of case. 19. The Paper (paragraph 81) recognises that NGOs could not be refused standing in environmental cases because of Aarhus and EU law obligations. But a dichotomy between environmental and other public law cases would produce an incoherent position; and would be likely to produce fraught and wasteful disputes as to the boundary between the two classes. 20. The final test proposed by the Paper is the adoption of some formulation such as person aggrieved. If this is intended to exclude claimants such as the WDM, it is open to the basic objection set out above. 21. It is also inherently uncertain. It would be open to judicial interpretation if applied in contexts remote from that in which it is presently used, which classically involve a decision making process including a right to make representations and a subsequent inquiry. It seems likely that the Courts would give it a wide meaning very similar to that presently accorded to sufficient interest precisely to avoid the grave lacuna. It is easier (in general rule of law terms) to justify a slightly narrower approach to standing where there has been a systematic collection of representations, followed by inquiry and ministerial decision, than it is where there would be no person aggrieved at all. In the first case, a large number of people who have made representations or attended the inquiry can claim to be a person aggrieved by the decision on the existing case-law. If the term is translated into the WDM context, then either it can be given a wide enough meaning to encompass WDM; or the grave lacuna returns. 22. The Bar Council would accordingly answer Questions 9-11 as follows:- Question 9: Is there, in your view, a problem with cases being brought where the claimant has little or no direct interest in the matter? Do you have any examples? 23. No. The Bar Council is not aware of an existing problem which should be addressed - with judicial reviews being brought by claimants with little or no interest in the matter. Question 10: If the Government were to legislate to amend the test for standing, would any of the existing alternatives provide a reasonable basis? Should the Government consider other options? 24. No Question 11: Are there any other issues, such as the rules on interveners, the Government should consider in seeking to address the problem of judicial review being used as a campaigning tool? 25. No. The Bar Council does not consider that there is a current problem with

6 interventions being used as a campaigning tool. It is very difficult to think of any interventions which have not been regarded as helpful by the Court, even if they have not been accepted. The Bar Council is not aware of any adverse judicial comment on difficulties caused by interventions. On the other hand, it is aware of many cases where the Court has expressed gratitude for the intervention. It is to be noted that the Paper does not give any actual examples of interventions being used as an illegitimate campaigning tool. Please also see our comments below on questions Question 12: Should consideration of the no difference argument be brought forward to permission stage on the assertion of the defendant in the Acknowledgment of Service? Question 13: How could the Government mitigate the risk of consideration of the no difference argument turning into a full dress rehearsal for the final hearing, and therefore simply add to the costs of proceedings? Question 14: Should the threshold for assessing whether a case based on a procedural flaw should be dismissed be changed to highly likely that the outcome would be the same? Is there an alternative test that might better achieve the desired outcome? Question 15: Are there alternative measures the Government could take to reduce the impact of judicial reviews brought solely on the grounds of procedural defects? Question 16: Do you have any evidence or examples of cases being brought solely on the grounds of procedural defects and the impact that such cases have caused (e.g. cost or delay)? 26. We have no difficulty with the proposition that a purely formal defect that has prejudiced no-one should not automatically lead to the quashing of a decision. But even on the current inevitable test, that is in reality already the position. The lesser the defect, the less difficulty the court has in concluding that the decision would be bound to be the same if quashed and taken again, making a quashing order effectively academic and liable to be refused as a matter of discretion. The more substantial the defect, the greater the burden on the defendant to persuade the court that observing procedural propriety would have made no difference. In other words the inevitable test is in truth a continuum. Where the defect has deprived someone of an opportunity to be heard, or deprived the decision-maker of a chance to reflect or reconsider, then for obvious reasons the threshold is rightly set high. Substituting a lower threshold would risk allowing unfairness to go unremedied. Prescribing a different threshold only for cases of minor or technical defects would produce uncertainty, and thus costly satellite arguments, about the cut-off point. We therefore oppose any change to the present law governing the test for a no difference argument. 27. As regards the stage at which the court should resolve no difference arguments, we observe that at the permission stage the court can already consider, as part of its overall assessment of arguability, the likely success of a no difference argument. If a claim is considered weak on its merits, the likelihood that discretion will be eventually exercised against relief on no difference (or other) grounds is routinely taken into account in deciding

7 whether the claim warrants permission. The prospect of refusal of relief on no difference grounds is intimately bound to the nature of the procedural defect. It would therefore be wrong in principle to bring forward the substantive resolution of a no difference issue to the permission stage. 28. However, we consider on balance that there may be some sense in bringing a degree of formality to the situation where a defendant wishes to resist permission on the basis that relief is likely to be refused. As the Consultation Paper acknowledges, it is important that the steps taken at the permission stage do not increase the costs of that stage, or duplicate costs more properly incurred at the substantive stage. One possibility is to amend the Part 54 Practice Direction to include a reminder that, in an appropriate case (particularly if the merits are not strong), the court may refuse permission where it considers that a no difference argument would be likely to succeed at the hearing; and that (i) a defendant seeking to resist permission on this basis must provide brief but sufficient supporting material in its summary grounds and written evidence; (ii) the claimant must have the opportunity of a brief reply before permission is determined (which makes this process unsuitable for urgent cases); (iii) both parties must take care to ensure that the material submitted at this stage is concise and proportionate; and (iv) the court should only refuse permission on this basis where the material makes it sufficiently clear that relief is likely to be refused even assuming the claimant establishes its case. Question 17: Can you suggest any alternative mechanisms for resolving disputes relating to the PSED that would be quicker and more cost-effective than judicial review? Please explain how these could operate in practice. 29. This question, while important, may give rise to a range of valid opinion. For this reason, the Bar Council does not seek to make suggestions. We would nevertheless welcome the opportunity to consider and comment on any changes before they are introduced. Question 18: Do you have any evidence regarding the volume and nature of PSED-related challenges? If so, please could you provide this. 30. For reasons set out in our response to Question 17, we do not seek to respond to this question. Question 19: Do you agree that providers should only be paid for work carried out on an application for judicial review in cases either where permission is granted, or where the LAA exercises its discretion to pay the provider in a case where proceedings are issued but the case concludes prior to a permission decision? Please give reasons. 31. The Bar Council disagrees strongly with the proposal to deny payment to claimant lawyers in cases where permission to apply for judicial review is refused. Judicial review is one of the main ways in which citizens may vindicate their rights and hold the executive to account. Threatening the viability of carrying out judicial review work will therefore have serious consequences for access to justice and the ability of individuals to challenge the actions

8 and/or decisions of public bodies. Those decisions often have significant and serious consequences for the everyday lives of people in Britain. 32. Anything which makes it unviable for practitioners to bring claims for judicial review or which discourages them from doing so will likely impede access to justice and the ability to take action to prevent wrongs by public bodies. We have no doubt that the proposals will have this inhibiting effect. 33. It is also very concerning that a particular group only (namely, legally aided claimants) would be subject to these provisions. Defendants would face no particular adverse consequences when they resisted applications for permission for no good reason. The position of privately funded claimants would remain unchanged. Treating legally aided claimants differently would be unfair. It does not happen in relation to other areas of law. It would create an unprecedented imbalance between the parties to litigation and will lead to inequality of arms. 34. The proposal creates an unacceptable level of risk for practitioners and will force many of them either not to take on this kind of work or not to take cases that are in any way challenging or uncertain. There are several factors that lead us to this conclusion: a. An application for permission carries a relatively high risk of initial failure. Even where a claim is meritorious it is often necessary to persist to an oral hearing or further to obtain permission. For example, while Wood v Commissioner of Police [2010] 1 WLR 123 is now a leading case on privacy and police records, permission for judicial review was only granted on appeal. b. Judicial review claims are front loaded in that most of the work from the claimant s perspective must be done at the stage of bringing the claim. Practitioners therefore have to invest a large amount of time, cost and effort for which they may not get paid. This is increased still further if they have to proceed to an oral hearing (whether a permission hearing or a rolled up hearing) or appeal. c. Applications for permission are difficult to predict and there is much variability among judges, and d. Many cases settle on beneficial terms after issue but before permission. It is not possible to tell how these are reflected in the statistics. Under the proposals these cases would not be paid for except on a discretionary basis. 35. Legal aid practitioners have a better than average record in obtaining permission and in securing a positive outcome for their clients. The Impact Assessment to the current proposal suggests that this is not lower than 18% and probably much higher. It is not possible to be precise because much data is missing, but legal aid case outcomes only record actual refusals in some 25% of cases. (See also Court Statistics Quarterly January to March 2013 (2013), Ministry of Justice, page 48). 36. However, many are already operating in marginal conditions and will find the risks too great to continue. We do not accept the assumption made in the Impact Assessment that legal aid lawyers will respond by diversifying into other, more profitable areas of law. There is a high risk that legal aid lawyers will exit legal aid work entirely and look to other markets. The

9 exit of legal aid lawyers is not in the public interest: everyone should have access to lawyers. Competition will suffer, which is bad for consumers. The Impact Assessment lists the main affected groups in general terms, but does not have due regard to the social impact of the policy or the value of access to justice for all. 37. There is likely to be a disproportionate impact on black and minority ethnic (BME) barristers due to the fact that the majority of judicial review cases are immigration cases and BME barristers are over-represented in this area of legal practice. 38. Even if permission is refused that does not mean that the claim ought not to have been brought. Often claims become academic or the merits change when the authority produces late disclosure. In other cases the refusal simply shows that the judge disagreed with the argument and not that it was misconceived. If lawyers have to bear all of these risks without being paid then many will stop doing the work altogether. 39. The current proposal increases the incentive for local authorities to fail to engage or to provide important information when they ought to because authorities may be able to starve out claimants because their lawyers will have to give up before issuing proceedings. The proposal rewards bad practice by those public bodies least likely to comply with their duties under the Human Rights Act A particularly damaging part of the proposal is that it penalises practitioners by refusing payment where the claim settles before permission with a benefit to the client. It is often difficult to obtain a costs order in these cases. The Ministry of Justice proposes that there should be a power to pay but, for reasons set out in our response to Question 20, the scheme under consideration in the Consultation Paper will be ineffective. 41. In proposing a scheme for discretionary payments in cases that settle prior to a permission decision, the Government says that it wants to be sure that there are not cases where the respondent concedes simply to avoid the costs and delay of litigation (paragraph 12 of the Consultation Paper). It is difficult to find evidence in the Consultation Paper or in the Impact Assessment to indicate whether or to what extent public authorities compromise judicial proceedings as a pure matter of expedience rather than on a principled basis. The Government does not appear to have surveyed or otherwise assessed government departments in relation to their motivations for compromising judicial review applications, which would have enabled us to comment on the Government s concerns. 42. The Impact Assessment does not monetise or estimate the costs to the LAA of running the discretionary scheme. The costs are said to be small but there is no evidence to support this assessment. The proposal to have a discretionary scheme for payment fails to recognise that settlement without going to court is efficient, which the Ministry of Justice would doubtless regard as a benefit in other areas of policy. The Consultation Paper highlights the large number of cases (40% of all applications in 2012) that end by being withdrawn before a permission decision. However, evidence about the grounds for withdrawal is virtually nonexistent because the reasons for withdrawal are not recorded (see paragraph 12 of the Consultation Paper). This uncertainty, and the use of discretion as proposed, call for more detailed modelling and discussion with stakeholders. The Impact Assessment ought to model

10 what appears an obvious incentive not to settle the case before going to court. HMCTS costs would presumably be significant if even a proportion of these cases went to court, and there may be other whole-of-government costs too. 43. We believe that the Government s proposals may have unintended consequences. The objective of expediting cases that concern economic growth and infrastructure (set out in paragraph 6 of the Consultation Paper) may be weakened if there is an incentive not to settle legally aided judicial review cases before a permission decision. We are concerned that the Government may not have assessed whole-of-government costs, including the costs to departments concerned with promoting economic growth. If a proportion of legally aided cases that would otherwise settle were incentivised to fight on, the policy would risk diverting resources towards litigation in those cases and away from cases concerning strategic infrastructure, contrary to the public interest. 44. Rolled up hearings should never be undertaken at risk, owing to the volume of work involved. Hearings are rolled up by court order often for reasons aimed at protecting the defendant, for example where the court considers that the merits should be ventilated but wishes to keep alive an arguable objection from delay or standing. It is not fair that a provider should not be paid for work undertaken under a court order. 45. If the Ministry of Justice is determined to penalise practitioners by making retrospective decisions not to pay them for work they have done then this should only apply where they have brought proceedings improperly. There is a ready mechanism to decide this since judicial review proceedings can now be declared to be wholly without merit if permission is refused. This is intended to block an application for oral renewal but could also be adapted for legal aid purposes. 46. Finally, it is important to recall why, in contrast with ordinary civil litigation, there is a permission stage in judicial review proceedings at all. Its purpose is precisely to provide a filter to protect public bodies against unarguable claims. That represents a satisfactory balance between the public interest in access to court and the public interest in administrative certainty. There is simply no evidence that unarguable claims are routinely permitted to proceed beyond the permission stage. In other words the existence of the filter amply serves its intended purpose. A claim is either arguable or it is not, and the permission stage is the appropriate mechanism for determining that question. It is wrong in principle to impose additional, specific disincentives to accessing the permission stage itself. That does not rebalance judicial review; rather, it risks fatally undermining it. Question 20: Do you agree with the criteria on which it is proposed that the LAA will exercise its discretion? Please give reasons. 47. The proposed criteria are so exacting that they will rarely be met. Since they trigger a discretion only, there will be no practical way to enforce payment. The criteria are cumbersome and time consuming. Lawyers will need to provide evidence in support of their

11 claim (paragraph 129 of the Consultation Paper). In complex cases, it may take many hours to consolidate the evidence and make representations to the LAA. The provider will presumably not be paid for this work. 48. The criteria are subjective and vague. We do not think that the LAA is equipped to make finely grained judgments about the lawyer s conduct of the case (paragraph 125(i)) or about the benefit to the client of the remedy obtained (paragraph 125(ii) and (iii)) or about whether permission would have been granted by a judge (paragraph 125(iv)). 49. In cases that compromise, each party almost by definition accepts something less than was sought or resisted in the pleadings. It is difficult to understand how the LAA would be able to conclude whether the compromise was sufficiently beneficial to the claimant to justify payment (paragraph 125(ii)), as this would depend on all the circumstances and on the parties attitudes towards the compromise. A cautious claimant (or a vulnerable claimant unable to stand the stress of litigation) might compromise earlier than an aggressive litigant, yet the latter s lawyers may be more likely to be paid. There is no logic to such an outcome. 50. The proposed criteria create the risk that the opposing, defendant public body will influence whether a provider gets paid. Under paragraph 125(iii), it will be relevant whether the claimant obtained a remedy as a direct result of the proceedings or for some other reason (see footnote 66). Defendants may (and do) refuse to accept that judicial review proceedings have forced a change of position. This means that an obdurate defendant may put a claimant s lawyer out of payment. 51. The LAA will be judging the strength of a claim (under paragraph 125(iv)) when there has been no judicial decision. It is difficult to understand how the LAA is equipped to take on a quasi-judicial role. The LAA s decisions will suffer from being hypothetical and ex post facto. It is not clear to us why it should be more cost effective to have the LAA involved in intricate decisions of this sort than it would be to provide payment to the provider. 52. If a discretionary scheme is to be introduced, it should at the very least give the LAA an overriding discretion to award payment even where the criteria are not met. Exhaustive criteria cannot capture all circumstances in which it would be right to award payment. A degree of flexibility will provide better value for money: it will lead to fewer disputes with the LAA and fewer resources will be diverted to the scheme. Question 21: Should the courts consider awarding the costs of an oral permission hearing as a matter of course rather than just in exceptional circumstances? 53. We disagree with this proposal. While superficially meeting the Government s objective of cost-cutting, the proposal to make it easier for defendants to claim costs at the permission stage will generate unintended consequences. Renewal hearings are designed to be short and speedy. Public authorities are not required to attend unless ordered to do so. Under the proposals, public authorities will be incentivised to attend hearings and will lose the incentive to consider carefully the merits of attending before deploying public resources for this purpose. As expressed in R (MM Somalia) v Secretary of State for the Home Department [2009] EWHC 2353 (Admin): the Secretary of State... has an important function in determining

12 whether or not to defend, and thus argue, any claim. This duty should be equally applicable to the permission stage as to the substantive hearing. 54. The Government s proposal to shift costs will inevitably lead to longer and more protracted hearings as the parties do battle over whether the public authority s appearance was reasonable and whether the authority s costs were reasonable. This will slow down the court lists and increase HMCTS costs, while diverting judicial resources away from deciding other cases. 55. The Impact Assessment assumes that paying the costs of a renewal hearing will act as a financial disincentive to claimants. There is no evidence to support this assumption. Wealthy litigants may value access to justice above financial outlay. All litigants, whether wealthy or otherwise, already undertake some financial risk when launching proceedings. The financial risk means that some, meritorious judicial review cases are not pursued. We do not accept that shifting costs to claimants at the permission stage will alter the present incentives and disincentives for claimants to renew their applications, while it may incentivise public authorities to appear at hearings more often than otherwise, at risk to the public purse. 56. The data does not set out the rate of attendance by public authorities at renewal hearings, but it is fundamental that the courts need to be even-handed between the parties. If the Government is determined to implement costs shifting, it should operate both ways. The courts should have discretion to award costs against a defendant who appears and loses a permission hearing irrespective of any future costs awards in the proceedings as a whole. 57. We make a further point here which goes to the rebalancing intention behind this part of the Consultation Paper and questions It is disturbing that all the proposals made in the Paper envisage restrictions or disincentives as against the claimant. There is no acknowledgement that unnecessary cost and delay can also be contributed by defendants. 58. In our experience, it is all too often necessary for claimants to bring proceedings because the prospective defendant has failed adequately to engage with the issues at the pre-action stage. The Paper impliedly recognises this problem, referring as it does to the tendency of some cases to settle favourably to the claimant before the permission stage. Any rebalancing of the system needs to provide proper incentives for public bodies to behave positively early on. It is all too tempting for a public body that receives pre-claim correspondence often before it has sought independent advice from a member of the Bar to retreat reflexively into a defence of its position, rather than to review objectively whether it has fallen into error. That then becomes an entrenched position in the proceedings. In many cases, proper consideration of the prospective grounds for review early on would avoid the need for proceedings altogether, or at least narrow the issues and so save costs. 59. We therefore strongly urge the Government, if it is serious about questions of balance, to make proposals to address this point. Question 22: How could the approach to wasted costs orders be modified so that such orders are considered in relation to a wider range of behaviour? What do you think would be an appropriate test for making a wasted costs order against a legal representative?

13 60. We thoroughly reject the premise of this section of the Consultation Paper and the accompanying Impact Assessment that it is only claimant lawyers who are guilty of behaviours that generate avoidable costs. That is not the Bar s experience. The Government does not deal at all with avoidable costs that are incurred by public authorities or non-claimant lawyers, and so this aspect of the Consultation Paper is wholly one-sided. The Impact Assessment must be flawed on the grounds that it omits a raft of cost-benefit analysis around costs wasted by defendants and their lawyers. 61. The Bar Council takes no side as between claimants and defendants, or their respective lawyers. Our concern is with access to justice and with promotion of high standards of conduct by advocates regardless of which party they find themselves representing. In this context, we are bound to observe that the Government is in danger of demonising claimants and their lawyers for political convenience. We urge the Government to ensure that everyone who goes to court is treated equally and that penalties are not directed to only one party to proceedings. Equality before the law is part and parcel of the rule of law. Inequality of arms will inevitably result in damage to the administration of justice. It will damage the accountability of public decision-makers. The Government should not use costs provisions as a means of immunising its decisions from challenge by a side-wind. 62. We also have serious concern about the micro-management of costs issues through statutory instrument. Judges have expertise in making costs orders (including wasted costs orders) which neither Parliament nor the executive have. Judges who try cases are in the best position to assess costs on all the evidence. We do not think that a statutory instrument would add value and certainly the Government should not strive to constrain the role of the judiciary in what is par excellence a judicial task. 63. We are currently struggling to conceive a costs rule that could lawfully penalise one party and not the other. The key issue in the Consultation Paper appears to relate to the costs of renewed permission hearings (see paragraph 150). However, there are already mechanisms in place to deal with weak renewals. First, as mentioned above, judicial review proceedings can now be declared to be wholly without merit if permission is refused, which will block an application for oral renewal. Secondly, the Government in any legal proceedings to which it is a party has the option of seeking appropriate case management directions to ensure that weak cases are identified and brought to an early conclusion. Thirdly, the Administrative Court itself has held Hamid hearings, in which lawyers responsible for submitting unmeritorious urgent and out of hours applications or applications that fail to comply with procedural requirements are required to attend before the Court to explain their conduct. 64. We understand that, since Hamid, a number of such hearings have taken place (see e.g. Hamid [2012] EWHC 3070 (Admin), Awuku [2012] EWHC 3298 (Admin), Awuku (No 2) [2012] EWHC 3690 (Admin); and B & J [2012] EWHC 3770 (Admin)). We further understand that there was a general consensus at the last Administrative Court User Group meeting (on 23 July 2013) that Hamid hearings are a good idea. 65. In our view, Hamid hearings are preferable to new costs rules. They target those whom the judges regard as being at fault and we hold the strong view that judges are in the best

14 position to know. While targeting errant lawyers, they do not have any generalised, chilling effect on lawyers striving to serve their clients interests, or on access to justice. 66. We suggest that these various, new measures be given time to have their effect, and that a concluded view on the value of new costs rules be deferred until the effectiveness of recent changes has been assessed. Question 23: How might it be possible for the wasted costs order process to be streamlined? 67. This question concerns procedural matters which, while important, may give rise to a range of valid opinion. For this reason, we do not seek to comment. Question 24: Should a fee be charged to cover the costs of any oral hearing of a wasted costs order, and should that fee be contingent on the case being successful? 68. A person seeking to defend a wasted costs application should not be required to pay a fee at an oral hearing, in the same way that parties who defend applications made against them are not required to pay a fee in order to appear in court. 69. It is appropriate to require a party asking for a wasted costs order to pay a fee upon making the application, as a disincentive to unfounded applications and satellite litigation. Question 25: What scope is there to apply any changes in relation to wasted costs orders to types of cases other than judicial reviews? Please give details of any practical issues you think may arise. 70. We believe that the Jackson Reforms ought to be permitted to take their full effect before further changes are made. The costs budgeting provisions of the Civil Procedure Rules are intended to reduce the costs of civil litigation as a whole and ought to reduce the prospects of a party paying for the avoidable errors of a legal representative. We do not foresee how additional costs provisions would be likely to be superior to Lord Justice Jackson s reforms, whether in relation to the price or in relation to the speed of litigation. Question 26: What is your view on whether it is appropriate to stipulate that PCOs will not be available in any case where there is an individual or private interest regardless of whether there is a wider public interest? Question 27: How could the principles for making a PCO be modified to ensure a better balance a) between the parties to litigation and b) between providing access to the courts with the interests of the taxpayer? Question 28: What are your views on the proposals to give greater clarity on who is funding the litigation when considering a PCO? Question 29: Should there be a presumption that the court considers a cross cap protecting a defendant s liability to costs when making a PCO in favour of the claimant? Are there any circumstances when it is not appropriate to cap the defendant s costs liability?

15 Question 30: Should fixed limits be set for both the claimant and the defendant s cross cap? If so, what would be a suitable amount? 71. This part of the Consultation Paper deals with a number of issues relating to PCOs. Paraphrasing slightly: a. Should PCOs be removed entirely in non-environmental cases, in response to a perceived problem of political or campaigning judicial review claims where there is no claimant with a private interest? (Question 26) b. If PCOs are retained, should the principles applied by the courts (currently an adaptation of the principles originally laid down in Corner House) be modified to ensure a better balance? (Questions 26 and 27) c. Should information about identity of funders be made mandatory in PCO cases, so that the court can take this information into account in determining the cap and, potentially, when considering orders for costs against third parties? (Question 28) d. Should there be a presumption that the court, when making a PCO, considers a cross-cap on the defendant s liability for costs? Should there be fixed limits for the cap and cross-cap in non-aarhus cases? (Question 29) 72. We are bound to express our concern about the context the Consultation Paper sets for these questions. Protective costs orders in no sense give a claimant a free ride. Rather, they are a practical response by the courts themselves to the acknowledged problem that at the outset of judicial review proceedings, the claimant s eventual liability for the defendant s costs if the claim fails is uncertain but likely to be substantial, a factor which has an unwelcome chilling effect on arguable claims which otherwise ought to be brought. A PCO introduces a degree of certainty. The court s discretion as to whether to make a PCO, and if so at what level to set the cap, ensures that fairness can be achieved between the parties in the particular circumstances of each case. 73. As explained above, it is wrong to equate judicial review with ordinary litigation in which a party seeks to vindicate a purely private right. The purpose of judicial review is to enable the legality of official conduct to be examined in the public interest. Governmental behaviour is inevitably the product of policy and in that sense political decisions. As a result, many judicial review claims touch on inherently political matters. It is also inherent in the nature of judicial review that claims may be brought and in many cases can only be brought by parties without a private interest of their own (again, see our comments in relation to standing). Many such parties would be unable to invoke the court s jurisdiction without the certainty that a PCO brings to their eventual costs liability. 74. For all those reasons, PCOs are an essential part of the judicial review costs regime, and we strongly oppose any suggestion that they should be discontinued in non-environmental cases. Among other things, that would result in an arbitrary and undesirable distinction between environmental cases (to which the Aarhus Convention applies) and other categories of case. We reiterate the observation, made above, that this would simply be a recipe for fraught and wasteful boundary disputes.

16 75. It follows that our partial answer to question 26 is that it is wholly inappropriate to remove the availability of PCOs from any category of judicial review claim. 76. However, we welcome the opportunity to contribute to the discussion whether the current rules might be adjusted to improve their operation. 77. The remainder of Question 26, and question 27, raise the issue of the private interest criterion derived from Corner House. This criterion has been subject to criticism, not least because of its awkward relationship with the standing rules which require at least some interest in the subject-matter on the claimant s part. If the Government were to proceed with its proposal to reduce the scope of the standing rule so that only those with a private interest could bring a claim, retaining this ground for declining an order would wholly emasculate the PCO jurisdiction. 78. In our view, whatever the width of the standing rule, it is inappropriate and artificial for the existence of a private interest to operate as an automatic bar to a PCO. There may be cases where the personal interest of the claimant is such that it is appropriate for the risk of an adverse costs order to remain at large for example, where the claim is in reality brought to further a purely commercial interest. Even then, if bringing proceedings serves a demonstrable public interest, and the claim would probably not proceed without a PCO, it is hard to see why a PCO should be refused altogether. The nature of the claimant s interest is more appropriately considered as a factor in determining the amount of the cap and any crosscap. 79. As regards question 28, we do not oppose greater transparency in relation to funding, as has been the trend (for example) in relation to civil CFAs, which can be thought of as a mirror image of PCOs in affecting the ultimate costs position of the defendant. However, it is crucial that decision-making on a PCO remains swift and proportionate, and that the rules do not add unduly to the already front loaded burden of preparing judicial review proceedings within a very short limitation period. A lengthy examination of detailed financial information would be inimical to these objects. It is also important to avoid too sharp a contrast with the position in Aarhus claims. Therefore any new requirement should seek, at most, a brief and summary indication of the claimant s financial and funding position, suitable to be taken into account as part of the paper decision on a PCO. In most cases i.e. unless it is clear that either the claimant has effectively indemnified itself against costs liability, or its means are such that even a very large costs order would have no material impact on its finances the information would go to the amount of the cap rather than the question whether a PCO should be made at all. 80. On questions 29 and 30 we have no difficulty with the court routinely considering whether to impose a mutual cap on costs recoverable by a successful claimant. But it is important that the level at which any cap is set does not make funding arrangements such as CFAs generally unviable. Such methods of funding a claimant s own costs are of increasing importance with the decline in availability of legal aid for persons of moderate means. Fixed limits have the advantage of simplicity, and the presumptive limits ( 5,000/ 35,000) set in Aarhus cases strike us as a reasonable starting point. But judicial review claims vary widely, and the court should retain discretion to tailor the cap and any cross-cap to the circumstances