Jackson LJ on costs in all judicial reviews: Aarhus rules to apply

 

Review of Fixed Recoverable Costs: Supplemental Report, 31 July 2017 – here

Jackson LJ is still toiling away at costs issues some 8 years after his main report. The original report changed the whole way in which the civil courts go about working how much, if anything, is due from one side to another at the end of a case – budgets being one key element. The main part of this new report concerns extending fixed costs further.

This post is about something different, judicial review. Rather different factors may come into play when you are challenging public authorities. You may have a direct financial or other interest in the outcome, or you may just think that the law needs properly enforcing against those authorities. It does not follow that the winner should recover costs on the same rules as elsewhere in the civil system. And Jackson LJ returns to the question of costs in this context in Chapter 10 of his report.

Since 2013, things have been different in the area of environmental judicial reviews. With substantial prods from the EU, things are now better off for claimants, though recent reforms have sought to put further obstacles in the way of claimants: see my post here.

So it is refreshing to read something from a very senior judge which recognises the true value of judicial review as a whole and why the costs rules need adjusting in this area for the benefit of claimants.

Jackson LJ had originally proposed Qualified Oneway Cost Shifting (QOCS) for j.r; claimant recovers costs if he wins, and does not have to pay costs if he loses. The Government absorbed most of his recommendations, but ignored this. So he now gives a revised version, which is to adopt the current system applicable to environment judicial review and generalise it to all judicial reviews.

The Government has been down on judicial review claims over the years, asserting that most of them are without merit, and that, if anything, such claims need to made more difficult to bring. It would say that, wouldn’t it, because it is the subject of those claims, and its assertions need careful weighing against the rather limited data upon which it has in the past relied. And Government should read the first page of Jackson LJ’s Chapter 10 which contains a ringing explanation of why judicial review matters.

The current preferential position for environmental claims arises out of the UK’s Aarhus Convention obligations – to which we subscribe independently of the EU, in case you were wondering. See posts at the end of this one on Aarhus, including the true bluffer’s guide here. The UK has been made to comply with the Aarhus requirement that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.

In short, from April 2013, an optional regime was introduced for environmental j.rs in which a claimant’s costs liability was capped in the sum of £5,000 (if £10,000, if corporate), and a defendant’s liability capped in the sum of £35,000. In August 2016, a system of generalised j.r. costs capping orders came in (rather dead ducks). And in February 2017, the Aarhus rules were substantially modified, to make it practically more difficult, and certainly more expensive, to get the benefit of the £5,000/£10,000 caps. That modification is under challenge via j.r., and possibly some of the considerations uppermost in the Supreme Court’s quashing of the Employment Tribunal fees hike (see Dominic’s post here) may assist this challenge.

As I have said, Jackson LJ’s proposal is to generalise the Aarhus regime, in whichever incarnation may survive the challenge, if QOCS remain unacceptable to Government. It should apply to individuals, including where an individual represents the interests of other individuals (i.e. one £5,000 cap). Parties could opt out if, in a complex case, they anticipated incurring more than the £35,000 maximum which they would recover from the defendant. There would be some sort of confidential means testing – details to be forthcoming. Applications to vary the default £5,000/£10,000/£35,000 should be made up front and determined at the permission stage – so either side knew its ultimate liability at that stage, save in exceptional circumstances.

Jackson LJ recognised that these amendments could only be made by changes to primary legislation, a pity, because of the Brexit legislative crush coming up. But it did not need a pilot scheme, because the Aarhus system has been a pilot, which he recognised as a “success.” A conclusion which will be music to the ears of those challenging the recent tweaks – if it ain’t broke, don’t fix it.

He also realised that in heavy (not routine) j.rs, there may need to be costs management of the variety that we have all got used to in other civil claims – but here applicable where the predicted costs exceed £100,000 per side or the hearing estimate exceeds 2 days, and applicable at the discretion of the judge. There should be no discretion to override budgets – a desire not to get embroiled in the recent dispiriting and sanguinary flood of cases where people want to unpick costs budgets, for better or for worse.

Conclusion

It would be good if these recommendations were accepted by Government. It would go some distance towards making judicial review more accessible, though the effects of the February 2017 reforms on Aarhus claims should not be ignored.

But there might be a bit of a tweak towards such reform from, oddly, Brexit. The Government’s current position is that there needs to be no replacement on the enforcement side for the European Commission when that goes, because, guess what, judicial review can do all the work that the Commission did. Well, we can be sceptical about that as a general proposition (see my post here on environmental issues) but here is an opportunity for the Government to put its law where its mouth is.

 

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