Jenny Knox is a law lecturer at Southern Regional College and non-practicing solicitor. This article is based on a thesis she has written as part of the LLM in Human Rights at Queen’s University Belfast.
Previous issues of the PILA Bulletin (on 5 March and 2 July of this year) have reported on changes that the Criminal Justice and Courts Bill will make to judicial review in England and Wales. This short article focuses on two of the reforms that will have an impact on public interest litigants: third-party interventions and costs capping orders. The article will also suggest that the reforms can be interpreted as a shift from passive to active hostility towards the wider public interest litigation movement.
Public interest interventions
Clause 73 of the bill will create a presumption that interveners will pay their own costs along with the costs incurred by the parties as a result of the intervention, in the High Court and Court of Appeal (HL Bill 43). While interveners do generally pay their own costs, being at risk of paying a proportion of the parties’ costs would create an additional financial barrier to intervening in judicial review cases, particularly from the perspective of smaller public interest groups that rely on unstable funding sources. Despite Lady Hale recently describing interventions as ‘enormously helpful’ (at page 10) and the senior judiciary’s warning that ‘[c]aution should be adopted in relation to any change which may discourage interventions which are of benefit to the court’ (at paragraph 37), the bill seems set on throwing caution to the wind. Its next scheduled event is the report stage in the House of Lords which is due to take place on 20 October 2014.
Click here to read the Criminal Justice and Courts Bill 2014.
Click here to read Lady Hale’s speech at the Public Law Project Conference 2013.
Click here to read the response of the senior judiciary.
Costs capping orders
While clauses 74-76 of the bill seems to place protective costs orders on a statutory footing, the change of name to ‘costs capping orders’ is more than merely cosmetic. It represents a shift from orders primarily designed to facilitate public interest claims towards orders which will also limit the costs exposure of defendants (that may ultimately be found to have acted unlawfully). In addition, costs capping orders will not strictly mirror the Corner House principles that are currently liberally applied to guide the award of protective costs orders (at paragraph 74 of the judgment). For example, the bill would prevent public interest litigants from obtaining a costs capping order before permission is granted. This will undermine the utility of costs capping orders for public interest litigants, many of whom require certainty in the level of their potential costs exposure before the parties have an opportunity to incur significant costs.
Click here to read a summary of R (Corner House) v Secretary of State for Trade and Industry [2005].
From passive to active hostility
The honourable Michael Kirby, a former justice of the High Court of Australia, has written about the law’s hostility to public interest litigation in common law legal systems. While the evidence he points to is mainly drawn from Australian law, England and Wales also has a certain absence of legislation that is supportive of public interest litigation for example. In the context of judicial review, Aarhus Convention environmental claims are an exception to this, as both the claimant and defendant have their costs capped at a maximum of £10,000 and £35,000 respectively at first instance (see Civil Procedure Rules 45.41- 44). In addition, even though public interest litigants can apply for protective costs orders, legal practitioners have reported that these can be difficult and costly to attain in practice. It is suggested that these current issues with the law can be categorised as passive hostility towards public interest litigation, given the common theme is a lack of impetus to remove existing barriers that would support its growth.
If the bill as currently drafted becomes law, the reforms will not directly exclude public interest litigants from pursuing a judicial review claim by narrowing standing for example. They will however indirectly make it more difficult for public interest litigants to challenge the acts or omissions of public bodies by creating financial barriers. This was the express intent of the Ministry of Justice, as the consultation which preceded the bill entitled Judicial Review: Proposals for further reform asserted that public interest litigants (or at least a sub-set of them referred to as ‘campaigning groups’) were abusing judicial review by using it merely as a ‘delaying tactic’ or for ‘cheap headlines’. It is therefore suggested that the reforms signal a change from passive to active hostility towards the public interest litigation movement.
Click here to read the honourable Michael Kirby’s article from the Law Quarterly Review.
Click here to read the Ministry of Justice consultation paper.