Judicial review changes likely to become law

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We reported at the beginning of November (see article), that controversial changes to judicial review proceedings had been rejected by the House of Lords.

The proposed measures, contained in the Criminal Justice and Courts Bill, if enacted, would make it more difficult and more expensive for charities to participate in judicial review.  Judicial review is a court proceeding that examines the lawfulness of decisions made by government and other public bodies.

The House of Lords' decision to remove these provisions was reversed by the House of Commons on 1 December 2014 and the proposed changes have been reinserted.  It therefore looks likely that the new measures will be entered into law.

One of the amendments centres around 'interveners' i.e. third parties such as charities who are given permission to participate in a judicial review because they have particular expertise in a certain area.  Until now, an intervener has borne their own costs but not those of the other side, but the new law will make an intervener potentially liable for all costs associated with their intervention.

The bill also limits the ability of charities to seek a “protective costs order” – a legal mechanism that caps costs for litigants who would otherwise not be able to afford to bring a review.  Under the measures set out in the bill, charities are able to seek an order, but this would only be permitted after a “pre-permission” stage, at which point the charity may already have incurred significant costs.

In addition to opposition from charities, the amendments were opposed by the Law Society, the Bar Council and the Chartered Institute of Legal Executives (Cilex).  The full text of the proposed bill is available here.