Part 5: Judicial review- Capping of costs: Environmental cases

Donald McGillivray
Donald McGillivray

Part IV of the Criminal Justice and Courts Bill introduces a number of important changes to the judicial review process. The proclaimed

Emanuela Orlando
Emanuela Orlando

objective is to reduce costs and delays from the asserted instrumental use of judicial review. According to the Government (but not its critics) a large proportion of judicial review applications are weak or unmeritorious, with significant implications in terms of public costs and delays in the administration of justice and in the decision-making process.


In order to tackle this problem, clause 52 of the Bill limits the possibility to apply for judicial review to those claims which the Court considers worthy. In particular, it requires the Court to dismiss applications for judicial review “if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. This is a subtle but potentially significant shift from the current practice of the judges, who already weed out unmeritorious cases.

Subsequent sections introduce specific financial deterrents for prospective claimants by increasing the financial risks that they can incur in relation to judicial review. Claimants are now required to disclose at the outset how their claim is being funded and the resources available, while the courts shall consider making orders for costs against third parties who are providing financial support to claimants or who are likely and able to do so. Additionally, the Bill restricts the courts’ ability to make protective costs orders (cost capping orders) to more narrowly defined public interest cases, and only where a claimant would otherwise withdraw the claim and would be acting reasonably doing so. Separate provision is made for costs in environmental cases, which are distinct because of the Aarhus Convention which the UK and the EU are signatories to.

Are these proposed changes desirable?

This question appears particularly relevant when examining the reform from an environmental justice perspective. Although the proposals are not targeted to a particular area of the law, or to specific types of claims, challenges against planning permissions, especially for development and infrastructure projects, are among the main targets. One of the underlying arguments is that by reducing the number of challenges to planning and infrastructure authorisations, and by ensuring that those cases are dealt with in a more swift and expeditious manner, there will be benefits for development and economic growth. Thus, clause 59 of the Bill reduces the time limit to bring judicial proceedings in planning cases from 3 months to six weeks.

But what are the costs of these reforms in terms of environmental justice? And are those “costs” justified?

The public inquiry into Heathrow Terminal 5 is often cited as an example of how long and drawn out the planning process can be; yet, the thoroughness of its deliberations were an important factor in there not being any judicial review of its decision. It is also worth mentioning that judicial reviews in planning cases have the highest success rate. As these cases will be the ones most affected by the reform, the proposed changes have as their main effect of discouraging citizens, who will be affected by a government decision, to express their opinions. This seems evidently a backward step in a democratic society.

Going back to basics, judicial review exists to ensure that public authorities are accountable and to preserve good administration, and is a vital protection for the rule of law. The key issue is whether the new measures are about making judicial review more effective, or whether they are trying to make it more difficult to pursue.

Limitations to access to judicial review can have a significant impact in public interest cases—such as are typically environmental cases in relation to planning and infrastructure—where a collective, diffuse interest is at stake. Here, judicial review is often the only means for members of the public to challenge a public authority’s decision, given that they are often only third parties, and cannot rely on property or other types of individual rights.

The proposed cuts to time limits suggest that in the difficult balancing between greater access to justice, on the one hand, and greater certainty and efficiency in public decision-making on planning matters, on the other, the Government is inclined more toward the latter. It is no surprise that this proposal was strongly supported by business and public authorities, while being widely contested by academics, NGOs, members of the public, and perhaps significantly – by the cross party Joint Committee on Human Rights.

Many public interest cases, such as environmental cases, are pursued by charitable NGOs or community group who may not have the resources and the facilities to get access to lawyers. They may rely on free legal services, such as that offered by some university law clinics. Given that the latter do not usually have the required expertise in-house, and that even in high profile law firms pro bono work is usually not the priority, shortening the time limits to bring the claim is likely to hamper most those with fewer financial resources, putting them even further at a comparative disadvantage against better resourced opponents.

Moreover, on the point of costs, the Campaign to Protect Rural England—a national charity whose mission is to protect the English countryside—has voiced concernthat the required information concerning financial resources, including about external funding, could significantly and unduly deter campaign groups and charities from applying for judicial review and deter potential donors and financial supporters. Although costs in environmental cases must not, under the Aarhus Convention, be prohibitively expensive, it is interesting that reforms are being proposed which, whilst not obviously making access to justice harder, seem capable of doing this (and seem inequitable insofar as they require financial transparency from one side only).

Are those potential threats and limits to access to environmental justice justified? One of the bases of the reform of judicial review system for planning permissions cases is that the increasing number of judicial review applications, and the associated delays in the administration of justice, had affected the implementation of infrastructure projects, with negative consequences for development and economic growth. However, the steep rise in the numbers of judicial reviews that have been witnessed in recent years are almost exclusively due to rises in asylum and immigration cases – often taken because the law has been in such a mess and appeal routes are restricted. This leads to a final thought – is it not the quality of decision-making that should be the focus, rather than raising the spectre of unmeritorious or costly litigation?

Donald McGillivray is Reader in Law, University of Sussex

Dr Emanuela Orlando is Lecturer in Environmental Law, University of Sussex

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