The government has launched a consultation to assess how to achieve greater transparency in how judicial reviews are funded.
Judicial review is a process by which individuals, businesses and other affected parties can challenge the lawfulness of decisions or actions of public bodies, including those of Ministers, local authorities and those exercising public functions.
It is a largely judge-developed process and can be characterised as the rule of law in action, providing a key mechanism for individuals to hold the Executive to account.
Why the government is consulting
The government’s intention is to have greater transparency in how judicial reviews are funded, limiting the potential for third-party funders to avoid their appropriate liability for litigation costs and making sure that when costs capping orders are made – limiting or extinguishing a party’s costs liability – they are made in appropriate cases.
This consultation follows an earlier consultation that ran between September and November 2013, and which can be found alongside the government response at https://consult.justice.gov.uk/digital-communications/judicial-review. The government committed to introducing a number of reforms, including in relation to the provision of information on the funding of judicial reviews and replacing the protective costs order regime with a new system of costs capping orders.
Parliament subsequently legislated for these specific reforms in sections 85 to 90 of the Criminal Justice and Courts Act 2015. During the passage of the Act through Parliament, the government committed to running a consultation about the provision of financial information to the court on application for judicial review to make sure courts would have the information they need when deciding how to award costs. This consultation gives effect to that commitment, and the government is also consulting on the financial information that should be provided on application for a costs capping order.
To implement these reforms, provision in the Civil Procedure Rules and Tribunal Procedure Rules is required. This consultation paper seeks views on the government’s proposals for the rules setting out the financial information required from a claimant with the application for judicial review and when applying for a costs capping order. It seeks views on the proposals for rules to set out that:
a declaration of funding sources is required on an application for permission;
details of third-party funding or likely funding in connection with an application for judicial review need not be provided where the funding is below a threshold of £1,500; and
a more detailed picture of the applicant’s financial circumstances is required on application for a costs capping order than on application for permission.
The consultation runs from 21 July 2015 to 15 September 2015.