Jackson LJ is still toiling away at costs issues some 8 years after his main report. The original report changed the whole way in which the civil courts go about working how much, if anything, is due from one side to another at the end of a case – budgets being one key element.Â
This post is about something different, judicial review. Since 2013, things have been different in the area of environmental judicial reviews. It is refreshing to read something from a very senior judge which recognises the true value of judicial review as a whole and why the costs rules need adjusting in this area for the benefit of claimants.
Jackson LJ had originally proposed Qualified Oneway Cost Shifting (QOCS) for j.r; claimant recovers costs if he wins, and does not have to pay costs if he loses. The Government absorbed most of his recommendations, but ignored this. So he now gives a revised version, which is to adopt the current system applicable to environment judicial review and generalise it to all judicial reviews. The Government has been down on judicial review claims over the years, asserting that most of them are without merit, and that, if anything, such claims need to made more difficult to bring. It would say that, wouldn’t it, because it is the subject of those claims, and its assertions need careful weighing against the rather limited data upon which it has in the past relied.
The current preferential position for environmental claims arises out of the UK’s Aarhus Convention obligations – to which we subscribe independently of the EU, in case you were wondering.
From April 2013, an optional regime was introduced for environmental JR’s in which a claimant’s costs liability was capped in the sum of £5,000 (if £10,000, if corporate), and a defendant’s liability capped in the sum of £35,000. In August 2016, a system of generalised JR costs capping orders came in. And in February 2017, the Aarhus rules were substantially modified, to make it practically more difficult, and certainly more expensive, to get the benefit of the £5,000/£10,000 caps. That modification is under challenge via JR and possibly some of the considerations uppermost in the Supreme Court’s quashing of the Employment Tribunal fees hike may assist this challenge.
Jackson LJ’s proposal is to generalise the Aarhus regime, in whichever incarnation may survive the challenge, if QOCS remain unacceptable to Government. It should apply to individuals, including where an individual represents the interests of other individuals (i.e. one £5,000 cap). Parties could opt out if, in a complex case, they anticipated incurring more than the £35,000 maximum which they would recover from the defendant. There would be some sort of confidential means testing. Applications to vary the default £5,000/£10,000/£35,000 should be made up front and determined at the permission stage – so either side knew its ultimate liability at that stage, save in exceptional circumstances.
But there might be a bit of a tweak towards such reform from, oddly, Brexit. The Government’s current position is that there needs to be no replacement on the enforcement side for the European Commission when that goes, because, guess what, judicial review can do all the work that the Commission did. Well, we can be sceptical about that as a general proposition, but here is an opportunity for the Government to put its law where its mouth is.
This article was produced using material from UK Human Rights Blog
