Judicial review: recent reforms

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Walker Morris has reported previously on the progress of judicial review reforms through the parliamentary process [1]. On 12 February 2015 certain reforms, which have attracted fierce debate in Parliament and within the legal profession, received royal assent as Parts 3 and 4 of the Criminal Justice and Courts Act 2015. The date on which the reforms will come into force is not yet known, but the changes will be of real significance to all public bodies and those exercising public functions. They may also be met with some concern by citizens seeking to challenge public decisions and by interveners such as NGOs and charities. The key reforms include:

  • The new tests [2]. The court must refuse to grant relief on an application for judicial review if it appears “highly likely” that the outcome for the applicant would not have been “substantially different” if the conduct complained of had not occurred. The court can disregard this test, however, if that is appropriate for reasons of “exceptional public interest”. The new tests give rise to some uncertainty. Will deciding the “highly likely” and “substantially different” requirement be tantamount to a trial of a preliminary issue, resulting in significant front-loading of evidence and costs? What constitutes “exceptional public interest”, an undefined term?
  • Provision of financial information [3]. Applicants must provide information as to the source, nature and extent of their financial resources in connection with the claim.
  • Interveners will no longer be able to recover their costs from a party unless “exceptional circumstances” (which are to be specified) apply; and interveners may be ordered to pay costs incurred by a party as a result of the intervention [4]. The Law Society, Bar Council and Chartered Institute of Legal Executives have voiced concerns that this reform may deter expert organisations from providing important advice and guidance in judicial review proceedings.
  • Costs capping orders (“CCO”) may only be made if: permission for judicial review has been granted; the proceedings are in the “public interest”; and without the CCO the application would be withdrawn (and it would be reasonable for the applicant to so withdraw) [5]. The effect of this reform will be that challengers will not have the certainty of a costs limit until after the significant work and costs associated with the permission application have already been incurred.
  • A leapfrog appeal is an appeal directly to the Supreme Court. Various changes [6] extend the potential for leapfrog appeals, including allowing leapfrogs for all cases of national importance or raising significant issues; removing the requirement for all parties to consent to a leapfrog appeal; and allowing leapfrogs from decisions of the Upper Tribunal, Employment Appeals Tribunal and Special Immigration Appeals Commission.

[2] Section 84 CJCA 2015
[3] Section 85
[4] Section 87
[5] Sections 88 and 89
[6] Sections 63 – 66