Pro-development changes to judicial review procedures come into force

Court Print publication


April 2015 saw the introduction of important changes to judicial review procedures in the UK.

Relief where the outcome would not have been ‘substantially different’

The coming into force of Section 84(1)-(3) of the Criminal and Courts Act 2015 (the Act) implements two small – but potentially important – additional tests which the High Court can be required to consider when deciding whether or not to grant leave and/or relief following an application for judicial review.

The first test is relevant to the leave, or ‘permission’, stage of an application for judicial review brought under Part 54 of the Civil Procedure Rules. The court may – or must if asked to do so by the defendant – consider whether the outcome for the applicant “would have been substantially different if the conduct complained of had not occurred”.

If it appears to the court that it is highly likely that the outcome would not have been substantially different, the court must refuse to grant leave for a full hearing.

The second test is to be applied when the court is considering whether to grant relief following a hearing of the application for judicial review. The court must refuse to grant relief to the applicant in circumstances where it considers it appears to the court that it is highly likely that the outcome would not have been substantially different.

The introduction of the new tests is designed to weed out judicial review claims brought on technical or purely legalistic grounds. In the context of applications to be determined by the Planning Court, the changes are likely to benefit decision-makers and developers, and will help reduce unnecessary costs and delay caused by such technical challenges.

Costs awards and interveners

A second change now introduced by the Act applies to parties who are granted permission to file evidence or make representations in judicial review proceedings, but who were not named as a party to the proceedings (known as an ‘intervener’).

As a starting premise, a court may not now make an order requiring a party to pay an intervener’s costs in connection with the proceedings; unless there are exceptional circumstances which make it appropriate to do so.

Furthermore, if a named party to the proceedings makes an application to the court, provided that one of the following conditions are all met, the court must order that the intervener pays the applicants costs incurred as a result of the intervener’s involvement in that stage of the proceedings. The conditions are that:

  • (a) the intervener has acted, in substance, as the sole or principal applicant or defendant (or appellant or respondent, as applicable)
  • (b) the intervener’s evidence and representations, taken as a whole, have not been of significant assistance to the court;
  • (c) a significant part of the intervener’s evidence and representations relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the stage in the proceedings; or
  • (d) the intervener has behaved unreasonably.

Although the court was already entitled to make such an order – the ability to do so was historically at the judge’s discretion and rarely deployed. The new conditions now put costs awards against interveners on a statutory footing, and may act as a disincentive for interveners to prolong proceedings or otherwise meddle in an application for judicial review.

For further information and advice on the recent changes to the judicial review regime, contact Richard Sagar in the Planning and Environment Team at Walker Morris.