The government has published its response to its consultation on the implementation of judicial review reforms which will require claimants bringing a judicial review to provide certain financial information (see our previous e-flash on the topic here). The government has amended its approach in part based on the responses it received, and is seeking further views on whether financial information provided as part of a judicial review application should be shared with the other parties. However, it has rejected arguments that charities should be excluded from these requirements.

The response sets out the government’s approach to proposals on the financial information that will be required to be provided in order to bring a judicial review (under section 85 of the Criminal Justice and Courts Act 2015). As proposed in the consultation, this will be by way of a declaration regarding the funding of the claim: that the claim is funded (a) from the party’s own resources only, (b) from legal aid, (c) partly from other sources, or (d) the party is unable to demonstrate it has sufficient funds to cover liabilities arising in connection with the claim. In the case of (a) and (b), no further financial information is required to be provided. In the case of (c), the party will have to provide the name and address of anyone that has made aggregate contributions exceeding or likely to exceed £3,000. In the case of (d), the party would need to provide the name and address of an appropriate person who is able to provide information about the party’s members and their ability to provide financial support for the purposes of the claim.

The approach in (c) and (d) has slightly softened from what was previously proposed (a threshold of £1,500 and the details of members themselves, as opposed to the details of a person who could provide that information upon request). However, the government rejected arguments that charities should be excluded from these requirements (for example, because of existing regulation through the Charity Commission) or that the position should be different in respect of environmental claims.

As mentioned, in light of the mixed views it received, the government is consulting further on whether the financial information in the declaration should be provided to the other parties, or only the court (deadline for responding 18 August 2016).

The response confirms that the government is taking forward its plans to require more detailed financial information to be provided in support of an application for a costs capping order (an order limiting the claimant’s liability for the other parties’ costs of the claim). This will include a breakdown of the claimant’s significant assets, liabilities, income and expenditure.

Although many will welcome the increased financial threshold and simplification regarding the provision of information about members, the response has failed to resolve a number of uncertainties (for example, how charities will determine what constitutes their “own resources” as opposed to third party funding). The foreword to the response states there is a need to make sure that those who bring and control judicial reviews face a proper measure of the costs liability arising from their actions. It is questionable whether £3,000 is enough to demonstrate an expectation of control over a claim, particularly in the case of crowdfunding or donations to charities. Whilst it is a legitimate aim, the court already has means available for securing this. There is a danger moreover that the proposed measures will create unnecessary barriers and deterrents for charities taking judicial action and thereby seeking to protect those least able to afford access to justice.


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Melanie Carter

Partner and Head of Public & Regulatory

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+44(0)20 7551 7615

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m.carter@bwbllp.com
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Claire Whittle

Associate

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+44(0)20 7551 7605

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c.whittle@bwbllp.com
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Posted on 11/07/2016 in Legal Updates

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