The Criminal Justice and Courts Bill recently had its second reading in the UK parliament. The Bill could lead to a number of changes to the way judicial review cases are handled.
One of the changes proposed in the Bill is a requirement that the High Court consider whether “it is likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. If the outcome would not have been different then the application must be refused. This is a new stricter requirement for the courts to consider at the outset of cases, and aims to prevent unwarranted claims for judicial review reaching the courts.
Another proposed change is a requirement for applicants to provide information about how they plan to pay for the costs of the judicial review application. The information must include the source, nature and extent of financial resources available to the applicant in order for him to bring the case. The reasoning for this is that once the courts know who is funding the application, they can then distribute the costs fairly between the parties. UK Human Rights Blog has commented how this could deter people from making applications for judicial review.
The Bill also aims to codify the procedure for making Protective Costs Orders (PCO). The aim of PCOs is to allow cases to proceed where a claimant otherwise could not afford to litigate. In litigation the normal rule in this jurisdiction is that "costs follow the event". This means that at the conclusion of the litigation the loser pays the winner's costs. A PCO is a costs order which differs from the normal costs order in two ways: (1) a PCO is made at the outset of the case. In this way the parties ensures certainty as regards costs and manage risk. (2) a PCO does not follow the event e.g. it might provide that each side will bear their own costs whatever the outcome or that the losing side will recoup part of their costs
However the Bill would rule out the ability for PCOs to be made before permission to apply for judicial review had been granted (which means claimants would be at risk of significant pre-litigation costs). The Bill would also give the Lord Chancellor the power to amend the criteria for PCOs without having to refer the matter to the Parliament.
Now that the Bill has passed its second reading, it will go to a Public Bill Committee for consideration.
Click here to read the Full Second Reading from the House of Commons
Click here to read the Report of the Second Reading in the UK Human Rights Blog