The government’s controversial plans for reforming judicial review suffered a setback this week. The House of Lords has just passed several very significant amendments to the draft legislation. The most important of these removes the hostile costs regime that was intended for interveners in judicial reviews. This is very often a role filled by charities and other not-for-profit bodies who share their specialist knowledge to assist the court.

​​The amendments will be very welcome news for campaigning organisations. Whilst public bodies may feel that interveners’ involvement can often be positive, there will inevitably be some regret that measures that might have reduced the time and costs spent in some judicial reviews have been defeated.

The reforms are contained in Part 4 of the Criminal Justice and Courts Bill. The key amendments to the draft legislation are:​

  • Dropping the requirement for interveners to pay the costs of other parties. Charities and other not-for-profits sometimes intervene in judicial review cases, by submitting evidence on an area where they have specialist knowledge and in-depth experience. The courts are often grateful for the insight and assistance this brings. Before amendment the draft legislation required interveners to pay any other party’s legal costs caused by their intervention. It also prevented interveners recovering any of their own legal costs. The court could only deviate from these provisions in exceptional circumstances. If implemented, this would have been a major deterrent to intervention. However the amendment has removed these provisions entirely, and leaves the current position in place. This is that the court has a broad discretion to award costs for or against interveners, or to make no costs award at all.
  • Discretion as to when to grant permission: same outcome “highly likely”. In order to bring a judicial review, a claimant must gain permission from the court, who will assess whether their case is arguable. The draft legislation stated that the court must refuse permission where it considers it “highly likely” that the alleged unlawfulness made no difference to the outcome of the matter. This has now been amended so that the court has discretion to refuse permission in these circumstances, but does not have to do so.
  • Discretion as to when to grant permission: financial information. Before amendment the draft legislation required disclosure of financial information (including any third party financial backers) before permission could be granted, and required the court to consider a costs order against those third parties. The amendments give discretion to the court to decide whether it will require this information before granting permission, as is currently the case. Under the amended draft legislation a costs order against a third party backer will now be something that the court may, rather than must, consider.

A further significant amendment of interest to both claimant campaigning bodies and defendant public bodies was not agreed. This concerns whether costs capping orders (also known as protective costs orders) may be made before the court decides whether or not to grant permission, as is currently the case. Costs capping orders limit the costs liability of a party, so that however badly the case goes they can only be liable for the other party’s legal costs up to the capped amount. This can be significant because in some cases the costs incurred at the permission stage alone are considerable. Under the draft legislation costs capping orders (in non-environmental claims) could only be made after permission has been granted. An amendment removing this restriction was moved, but not agreed.


It remains to be seen in what form the legislation will be actually be passed. The Third Reading of the Bill in the Lords is scheduled for 10 November 2014, before it returns to the Commons to vote on the Lords’ amendments.

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Melanie Carter

Partner and Head of Public & Regulatory

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Posted on 30/10/2014 in Legal Updates

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