The Ministry of Justice has recently run a consultation on ways to curb the increasing number of applications for judicial review whilst protecting the public's access to justice. One method is to create greater transparency in how judicial review claims are being funded.
The costs of responding to judicial review claims are rising and the Government are trying to limit the potential for third party funders of judicial review claims to avoid liability for litigation costs where a claim is unsuccessful.
Judicial review is the process whereby decisions made by public bodies such as NHS Trusts are reviewed by the Courts. A patient might seek judicial review of a decision to withhold a particular type of drug or treatment and the Court will then look at whether the process by which the public body came to that decision was correct. The Criminal Justice and Courts Act 2015 came into effect on 12 February 2015 introducing a series of reforms to judicial review proceedings and the Government is now considering proposed amendments to the Civil Procedure Rules to give effect to the statutory changes.
Individuals looking to bring a claim for judicial review of a decision need to first establish that they have permission to bring a claim. It can be time consuming and expensive for the NHS to respond to an application for permission, let alone defend a subsequent claim. One of the proposals being discussed is the introduction of a declaration of the applicant's source of funding on an application for permission. The applicant may also be required to estimate the likely total cost of the judicial review. This will provide the Court with a more detailed picture of the applicant's financial circumstances and allow the Court to make a fully informed decision regarding how the costs of the litigation should be allocated. The Court is under an obligation to consider making a third party costs order against the funder. The requirement, if introduced, is likely to be limited to circumstances where the funding or likely funding in connection with an application for judicial review is above £1,500. This is intended to capture any funding arrangements where the applicant may be vulnerable to third party control and to omit from consideration any funding from small contributors. Applicants will, however, be under a duty to disclose any material change in financial circumstances such as funding increasing from below the £1,500 threshold to above it. The funding arrangements will not be publicised or disclosed to the Defendant public body.
In certain circumstances, the Court may be minded to make a cost capping order which limits or removes an applicant's liability to pay the public bodies' costs, irrespective of the outcome of the judicial review. Cost capping orders are appropriate in circumstances where the outcome of the claim is a matter of public interest but the applicant would be likely to discontinue the claim without the capping order. The Government is looking to introduce the requirement that the applicant provide a more detailed picture of his or her financial circumstances on application for a costs capping order. Such information might include the applicant's assets, income and third party funding options. It is proposed that this information will be made available to the Defendant public body and to any other interested third party.
Once the consultation has closed on 15 September 2015, the Ministry of Justice will publish the outcome. Should the proposed changes be implemented, we may see a welcomed reduction in the number of applications for judicial review of decisions made by NHS Trusts. It will be interesting to see how the Court uses the financial information provided when exercising its discretion to award costs.
Details of the Consultation can be found at: https://consult.justice.gov.uk/digital-communications/reform-ofjudicial-review-proposals-for-the-provis
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