ConsultationPaper2013 - JR Proposals For Further Reform

wssqqqqqqqqqqqqqqqqqqqqq 4TH FLOOR, RUSKIN CHAMBERS, 191 CORPORATION STREET, BIRMINGHAM, B4 6RP | DX 23525 Birmingham T: 0121 685 8595 | F: 0121 236 5121 | Email: office@communitylawpartnership.co.uk Website: www.communitylawpartnership.co.uk IN DEFENCE OF THE RULE OF LAW RESPONSE OF COMMUNITY LAW PARTNERSHIP TO THE MINISTRY OF JUSTICE CONSULTATION Judicial Review: Proposals for further reform Introduction To save re-inventing the wheel we refer back to our comments on the original judicial review proposals contained in the previous Ministry of Justice (MoJ) consultation paper Transforming Legal Aid We append those comments to this paper We believe that this latest paper combined with Mr Grayling’s recent article on Mail Online1 reveal that the Secretary of State’s true motivation in terms of reform of judicial review is not to deal with ‘unmeritorious claims’ but to stifle public law challenges to government The two ‘case studies’ quoted in the paper (at pp & 7) involve a challenge to a large development by ‘opponents’ and a challenge to the setting up of a ‘Free School’ by ‘a local campaign group’ There is no evidence that either of these cases involved ‘Left-wing campaigners’ ( even if they did, the presence of a ‘Left-wing campaigner’ or even of a ‘Right-wing campaigner’ would not mean that any public law challenge was ‘unmeritorious’) In a recent article 2, the former Lord Justice of Appeal, Stephen Sedley, has produced a commentary on what the Secretary of State is proposing with which we fully agree: Since the mid-17th century, no non-lawyer has held the office of Lord Chancellor The decision in 2012 to put a political enforcer, Chris Grayling, in charge of the legal system carried a calculated message: the rule of law was from now on, like everything else, going to be negotiable The incoming legal aid reforms were introduced by a The judicial review system is not a promotional tool for countless Left-wing campaigners (Mail Online, 06.09.13) Beware Kite-Flyers (London Review of Books, 35 No 17, 12.09.13, pp 13-16) consultation paper which gave a dismissively short time for responses and parodied its own case for attenuating legal aid by pointing out that people affected by unlawful state action ‘may represent themselves in court, seek to resolve issues by themselves, pay for services which support selfresolution, pay for private representation or decide not to tackle the issue at all’ This is an argument not for modifying or reducing legal aid but for abolishing it, something the Treasury has wished it could for half a century, but which the consultation paper, describing legal aid as a ‘hallmark of a fair, open justice system’, purports not to support Instead, Grayling’s proposal is to undermine judicial review by starving claimants of legal aid on several fronts …… [One method is] to deny legal aid for all judicial review claims (in which much of the cost is incurred in the early stages) until and unless a judge gives them the go-ahead In other words, the entire financial risk of initiating a claim is to be borne by the claimant’s lawyers The superficially attractive reason is that it will inhibit the making of longshot or speculative claims at public expense, but it is supported by no evidence, and the argument advanced in support of it – that the claimant’s lawyer ‘is in the best position to know the strength of their client’s case’ – displays a depressing degree of ignorance about how judicial review works More often than not, it is the defendant authority which holds most of the relevant cards, and in many cases it holds on to them for longer than it is supposed to, either because there is too little time for proper disclosure of documents or because sitting tight affords the best hope that the claim will go away The departmental calculation is that indigent claimants’ lawyers will be deterred from taking on all but sure-fire claims In proposing that other claimants can be left to their own devices without injustice, the paper makes no attempt to confront the consequences: a plethora of claims made by litigants in person, clogging up the courts as judges try to discern arguable points in the chaos of paper, and costing public authorities large sums in irrecoverable costs as they attempt to respond to such claims …… Grayling’s consultation paper appears not to comprehend that of the 11,000-odd judicial review claims which were initiated in 2011 but never came to trial, a substantial proportion will have been partly or wholly successful without need of adjudication We know from the ministry’s own statistics that something approaching half of the legally aided claims were withdrawn or settled before a judge was asked for permission to proceed, and independent research by the Public Law Project (confirmed in a letter to the attorney-general by the team of barristers who represent the government in court) indicates that, of these, a majority will have been compromised in the claimant’s favour …… In the round, judicial review is an economic and effective branch of litigation, performing a constitutionally critical role in keeping the exercise of public power within the law, and legal aid for it is for the most part money well spent …… What we know is what the 145 barristers who, as members of the attorney-general’s panels, argue cases on behalf of the central state, wrote to him in their joint letter: ‘We consider that the proposals in the consultation paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular.’ In the Foreword to the latest consultation paper, it is stated (p3): [T]he use of judicial review has expanded massively in recent years and it is open to abuse The Government is concerned about the time and money wasted in dealing with unmeritorious cases which may be brought simply to generate publicity or to delay implementation of a decision that was properly made Moreover, a significant proportion of these weak applications are funded by the tax payer – through the expense incurred by the defendant public authority, by the court resource entailed, and in some cases by legal aid or by the public authority bearing the claimant’s legal costs This is unsustainable, particularly when the judicial reviews are brought by groups who seek nothing more than cheap headlines We need to think of the impact that these judicial reviews are having on the country as a whole We need dynamism and growth, not delay and expense We owe it to taxpayers, we owe it to industry and we owe it to those in search of work Using court time and public money simply to object to a lawful policy of an elected government or to generate publicity is not acceptable The lack of any real evidence that was apparent in Transforming Legal Aid is continued in this paper The concern with ‘groups’ seeking ‘cheap headlines’ is apparently a new concern (not mentioned in the first paper) but, as mentioned above, the only two case studies in the paper not explain how it might be said that the groups or individuals concerned were solely seeking headlines Aside from the lack of evidence, nothing that is said in this piece from the Foreword has anything to with legal aid cases In the Introduction another ‘concern’ is canvassed ( at 1.6): Unmeritorious cases in other areas can delay wider government reforms and the progress of major infrastructure projects which are intended to stimulate growth and promote economic recovery Once again, no real evidence is provided and, once again, this has nothing to with legal aid cases Finally the paper gets on to legal aid (also at 1.6): The Government is also concerned that legal aid resources should be properly targeted at those judicial review cases where they are needed most, if the legal aid system is to command public confidence and credibility The judicial review cases we take are precisely targeted where they are needed most: a homeless family on the streets because of a failure by a local authority to comply with the homelessness legislation; a Gypsy or Traveller family being evicted by a local authority that has failed to follow government guidance ;and so on We will no longer be able to take these cases on because to so would be to take them on “on a wing and a prayer” of getting paid for the work we on them The safeguard of a discretion to pay us vested in the Legal Aid Agency (LAA) would not be sufficient to allow us to take the cases on The manner in which the LAA is using its discretion in relation to applications for exceptional funding leads us to believe that it would not exercise its discretion to pay us As a virtually 100% legal aid practice our margins are simply too tight to enable us to take a case on that we might not be paid for We give here three examples of those who we have helped but who we would not have been able to help if the proposed regime had been in place: 7.1 We assisted a Gypsy family, who had to resort to unauthorised encampments, to make a homeless application to the local authority in whose area they are normally encamped The local authority failed to properly deal with the application and a judicial review was lodged Prior to permission being dealt with, the local authority offered a temporary site to the family 7.2 S was brought to this country at the age of by her grandmother to attend a funeral She was left here with relatives, no doubt, in the eyes of her grandmother, for a better life but in fact she was abused by those charged with caring for her She went through school without telling anyone of her experiences and without coming to the attention of Social Services At first she was treated as a servant, but as she grew older she was passed around the male members of the family who sexually abused her At the age of 19 she was discarded and was on the streets She did not know that she had no right to be in the UK since she had grown up here She was referred to us, and to specialist immigration solicitors by the Welfare Officer of the college she was attending That officer had tried to obtain help from the local authority for S but was told that they had no duties towards her The legal position was complex She had no right to benefits or housing via the usual channels The local authority only had duties towards her under the Community Care legislation if failure to provide services would breach her human rights When she instructed us S was in a very fragile state It soon became clear that she was mentally ill The local authority refused to accept this and refused to provide accommodation and services Judicial review proceedings were issued and an interim injunction requiring the provision of services and accommodation was obtained The local authority (LA) fought the case tooth and nail, insisting that S was “bad not mad” (their words) S started fire setting and was suffering from paranoid delusions We obtained the report of a psychiatrist because the LA refused to so S was an extremely difficult and demanding client due to her illness She became convinced that the conducting solicitor was her mother and that our receptionist was in league with her enemies The local authority continued to fight the case which was listed for final hearing Before the date of the hearing S was detained under the Mental Health Act and spent months in hospital During that time she was granted Indefinite Leave to Enter the UK and so became eligible for housing and benefits She began the long process of recovery, and is now well and working Due to her difficulties and the attitude of the LA to the litigation the costs were £20,000 The Court ultimately ordered the LA to pay those costs The fact remains that under the proposed regime we simply could not have afforded to take S’s case on because it was clearly going to be difficult and we could not take on such a case ‘at risk’ 7.3 A had no family to look after him since he was aged 15 Social Services left him with a family to whom he was not related When A was 17 years old this arrangement broke down and he went to the Local Authority(LA) seeking help He was allocated a social worker who provided minimal support and was referred on to the housing department who allocated a bed flat The LA refused to accept any duty under s20 Children Act before his 18th birthday, and thereafter under the Leaving Care duties as a Former Relevant Child He was not allocated a Personal Adviser, no Pathway Plan was prepared and he struggled to cope Repeated efforts were made preissue to obtain the acknowledgment that a duty was owed This was refused until shortly after the issue of judicial review proceedings – when the LA accepted a duty There was no order for costs In similar cases shortly after this the LA agreed a duty at the pre action stage but only because they were now aware that proceedings would be issued One of these cases concerned a young person who had been profoundly mentally ill whilst a child and was awaiting surgery following his self-harming by cutting off his own nose We know that the majority of legal aid lawyers are doing likewise – holding public authorities to account for their vulnerable clients At the moment, many local authorities back down under the threat of judicial review They are unlikely to continue to so if they know that the threat is an empty one Moreover example 7.3 above illustrates the effect of one judicial review on local authority practice in general However there are other instances where continual judicial review challenges to an unlawful local authority practice are settled favourably for the claimant but the local authority continue to implement the practice In such cases it makes financial sense for a challenge to go forward just about the policy even if the individual’s problem is resolved ( see R(Aweys) v Birmingham City Council for example) Such a challenge clearly has ‘significant wider public interest’ (SWPI) However it is difficult to see how SWPI cases and also cases of ‘overwhelming importance to the client’ will be taken under the new proposals Thus many unlawful practices and policies will remain in place 10 We re-emphasise what we said in our first submission – the vast majority of our judicial review cases are successful, with a positive outcome for our client, prior to the permission stage being reached Positive outcomes lead directly to better decision making by local authorities and thus fewer challenges in the future If there is a problem with some types of judicial review or some lawyers who undertake them, the authorisation to judicial review work could simply be withheld from those lawyers who waste money on hopeless cases This solves the problem without penalising those lawyers who are doing excellent and vital work for poor and disadvantaged clients who are faced with unlawful actions and decisions by public authorities 11 The issue of delay is raised (at 1.16): [U]nsuccessful judicial review applications can cause delays to the implementation of policies and projects For cases lodged in 2012 it took, on average, around 83 days for an application to be considered for permission on the papers, and a further 95 days for decision on permission after oral hearing (where there was one) Overall, for applications lodged in 2011 which reached a final hearing, it took on average 313 days for these cases to reach a final hearing from the day they were lodged 12 The transfer of Immigration and Asylum cases to Tribunal will ease the backlog The main backlog by far is in the Administrative Court in London If both parties agree, cases could be referred to the regional courts where waiting times are much shorter Planning 13 CLP’s Travellers Advice Team represents Gypsies and Travellers in appeals to the high court under sections 288 and 289 of the Town and Country Planning Act 1990 These cases involve potential ‘loss of home’ for our clients If they lose they will have to leave their land and resort to roadside camping The Department for Communities and Local Government is clear ( see Planning policy for traveller sites) that the answer to unauthorised camps is authorised provision If planning permission is obtained by a Gypsy or Traveller family then that will completely resolve their accommodation problems and they will not have to have recourse to public funding again In this context CLP have had some excellent results over the years: 13.1 Ms Moore lives on her own land in Kent The site is situated within the Metropolitan Green Belt Ms Moore is a single parent who lives in a mobile home on the land with her three children She is a Romani Gypsy She also suffers with a number of medical problems Before Ms Moore moved to the appeal site in July 2010 she and her children lived for some 12 years in a caravan situated on the front drive of a rented Housing Association property in Orpington This was due to the fact that she had an aversion to living in bricks and mortar accommodation The Housing Association in March 2010 gave Ms Moore a 28 days’ Notice to remove the vehicles from her drive and later a further Notice was sent regarding the Association seeking legal advice on the matter Ms Moore had submitted an application for planning permission for her site which already had the benefit of permission for equestrian use In July 2010 Ms Moore, together with her children, moved onto the site with her mobile home and her tenancy with the Housing Association was terminated The local planning authority (LPA) refused her application for change of use and they then commenced injunction proceedings in late 2010 which have been stayed pending the outcome of her appeal The refusal of planning permission was appealed to the Planning Inspectorate and the Inspector went on to dismiss her planning appeal Had legal aid not been available for a Section 288 Town & Country Planning Act (T&CPA) 1990 application to the high court, then that would have brought the matter to an end The LPA would have proceeded with its application for an injunction under Section 187B of the T&CPA 1990 and by now Ms Moore would be off the land Ms Moore then lodged her challenge to the Inspector’s dismissal of her appeal and counsel was then instructed on the matter Judgment was handed down by Mrs Justice Cox on 16 November 2012 Mrs Justice Cox allowed the appeal and gave a very lengthy and reasoned judgment She found that the Inspector failed to make relevant findings, as required, and that his decision to refuse a temporary planning permission to Ms Moore was irrational and could not stand Alternatively, she considered that the Inspector’s decision on the issue of temporary permission was inadequately reasoned and that, for that reason in addition, his decision could not stand The Secretary of State then appealed to the Court of Appeal who upheld the decision of Mrs Justice Cox Lord Justice Richards emphasised the importance of taking into account the fact that the family would have had to resort to roadside camping if they did not receive temporary planning permission This is an important decision not just for Ms Moore but for all Gypsies and Travellers who are seeking at least temporary permission while they wait for local planning authorities to produce their five year deliverable supply of sites (which they should already have done under the DCLG’s new planning policy Planning policy for traveller sites) Once again this important decision (not only for our client but for other Gypsies and Travellers) would not have been achieved without the availability of legal aid 13.2 Wychavon District Council –v- The Secretary of State for Communities and Local Government and Butler [2009] PTSR 19 – Court of Appeal This is now the leading authority on the approach to Gypsy and Traveller sites in the context of Green Belt policy In this case the Appellants, Kathleen and Leonard Butler, were Romani Gypsies who lived on their own land in the Green Belt with their two young children Wychavon District Council refused their application for planning permission since they said it constituted inappropriate development within the Green Belt That decision was then appealed by way of a Section 78 Appeal to the Planning Inspectorate and on appeal the Planning Inspector granted Mr and Mrs Butler a temporary planning permission of five years Planning permission was granted for a number of reasons and these related to the family’s educational and health needs, and the current lack of alternative sites which all constituted ‘very special circumstances’ The LPA appealed that decision to the high court and the judge hearing the Council’s appeal allowed it, holding that the factors which were identified by the Inspector were commonplace and could not amount to very special circumstances This meant that the five year temporary planning permission which had been granted to Mr and Mrs Butler was taken away from them and then the matter would need to be remitted back to the Inspectorate for a fresh determination Fortunately for Mr and Mrs Butler, with the benefit of public funding, an appeal was lodged with the Court of Appeal challenging the high court decision The Secretary of State for Communities and Local Government consented to a judgment and was not represented at the final hearing in June 2008 The Secretary of State had not resisted the application to quash the decision Although she was not a party to the appeal she had submitted a written statement in which she had only taken issue with a small part of the judge’s reasoning The Court of Appeal handed down its decision on 23 June 2008 The Court of Appeal allowed the Appeal The court held that the Judge below (and also Sullivan J in R (Chelmsford BC) –v- The First Secretary of State [2004] P & CR 677) had been wrong to apply a two stage test, requiring both that there must be circumstances which can reasonably be described as very special and that the various types of harm had been clearly outweighed by other considerations There was no such ‘rigid division’ and the word ‘special’ in the guidance meant ‘not a quantitative test, but a qualitative Judgment as to weight to be given to the particular factor for planning purposes’ In this case the judge in the high court had been wrong to quash as perverse the Inspector’s decision that there were very special circumstances such as to justify a temporary five year permission 13.3 Langton and McGill –v- The Secretary of State for Communities and Local Government and West Dorset District Council High Court of Justice, 2008 This case was an application under Section 288 of T&CPA 1990 The Inspector appointed by the Secretary of State had dismissed our client’s appeal against the refusal of planning permission The site in question was in the Dorset Area of Outstanding Natural Beauty (AONB) The Inspector dismissed the appeal following a Public Inquiry and with the benefit of public funding an application under Section 288 was lodged with the high court The Inspector’s decision was criticised on two main grounds: The way in which the Inspector addressed the rights of Langton and McGill under Article 8; The Inspector’s treatment of the balance to be struck between the ‘need for sites’ which supported the grant of permission and the harm done to the AONB The judge hearing this case rejected the first ground but upheld the second The outcome of the case was that our appeal was upheld and the Inspector’s decision was quashed When that decision was remitted back to the Planning Inspectorate, Langton and McGill were granted a temporary planning permission 14 The paper states ( at paras 63-66): The Government is also considering whether it is appropriate for the public purse to continue to fund legal aid for statutory challenges to the Secretary of State’s planning decisions under sections 288 and 289 of the Town and Country Planning Act (TCPA) 1990, specifically challenges under these sections where a local planning authority’s decision, or non-determination of an application, has already been appealed to the Secretary of State, or he 10 The consultation questions Planning Streamlining planning challenges Question 1: Do you envisage advantages for the creation of a specialist Land and Planning Chamber over and above those anticipated from the Planning Fast Track? In the case of individuals as opposed to large corporations we envisage no advantages On the contrary we feel that individuals will not be able to take such challenges without the assistance of legal aid due to the complexity of the law and procedures Question 2: If you think that a new Land and Planning Chamber is desirable, what procedural requirements might deliver the best approach and what other types of case (for example linked environmental permits) might the new Chamber hear? As stated above, we not think a tribunal system will be desirable for individuals Question 3: Is there a case for introducing a permission filter for statutory challenges under the Town and Country Planning Act? There is no case for a filter system since the system works perfectly well as it is Question 4: Do you have any examples/evidence of the impact that judicial review, or statutory challenges of government decisions, have on development, including infrastructure? Question 5: More generally, are there any suggestions that you would wish to make to improve the speed of operation of the judicial review or statutory challenge processes relating to development, including infrastructure? We would like to see more cases heard in the regional centres Local Authorities challenging Infrastructure Projects Question 6: Should further limits be placed on the ability of a local authority to challenge decisions on nationally significant infrastructure projects? Question 7: Do you have any evidence or examples of cases being brought by local authorities and the impact this causes (e.g costs or delays)? Challenges to planning decisions under sections 288 and 289 of the Town and Country Planning Act 1990 Question 8: Do you have views on whether taxpayer funded legal aid should continue to be available for challenges to the Secretary of State’s planning decisions under sections 288 and 289 of the Town and Country Planning Act 1990 where there has already been 19 an appeal to the Secretary of State or the Secretary of State has taken a decision on a called-in application (other than where the failure to fund such a challenge would result in breach or risk of a breach of the legal aid applicant’s ECHR or EU rights)? We strongly believe that legal aid should continue for such cases: o The proposal to remove legal aid seems to directly target two ethnic minority groups, namely Romani Gypsies and Irish Travellers; o If a Gypsy or Traveller wins their case, then all their accommodation problems are resolved; o Why should Gypsies and Travellers, effectively, not be allowed an appeal process?; o The majority of Gypsies and Travellers will not be able to run cases themselves due to the complexity of the law and procedures; o Any removal of legal aid will lead to an inevitable breach of article Standing Question 9: Is there, in your view, a problem with cases being brought where the claimant has little or no direct interest in the matter? Do you have any examples? We not think there is a problem The proposals will: o Mean that NGOs and charities will be unable to take vital cases forward; o Lead to misuse and abuse of power going unchecked Question 10: If the Government were to legislate to amend the test for standing, would any of the existing alternatives provide a reasonable basis? Should the Government consider other options? The proposals will: o Mean that NGOs and charities will be unable to take vital cases forward; o Lead to misuse and abuse of power going unchecked Question 11: Are there any other issues, such as the rules on interveners, we should consider in seeking to address the problem of judicial review being used as a campaigning tool? There is no evidence that judicial review is being used in this way The proposals will lead to misuse and abuse of power going unchecked and bad practices and policies no longer being changed Procedural Defects Option - Bring forward the Consideration Question 12: Should the consideration of the “no difference” argument be brought forward to permission stage on the assertion of the defendant in the Acknowledgment of Service? No it should not Courts already strike the right balance 20 Question 13: How could the Government mitigate the risk of consideration of the “no difference” argument turning into a full dress rehearsal for the final hearing, and therefore simply add to the costs of proceedings? There is no need to change the current procedure which works perfectly well and fairly Option – Apply a lower test Question 14: Should the threshold for assessing whether a case based on a procedural flaw should be dismissed be changed to ‘highly likely’ that the outcome would be the same? Is there an alternative test that might better achieve the desired outcome? No it should not No evidence has been provided that the current test is flawed There are important and well established public policy reasons for maintaining the current threshold The dichotomy between ‘procedural defect’ and ‘substantive illegality’ that the paper seeks to draw is misconceived (see Smith v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 Question 15: Are there alternative measures the Government could take to reduce the impact of judicial reviews brought solely on the grounds of procedural defects? No there are not No evidence has been provided that the current test is flawed There are important and well established public policy reasons for maintaining the current threshold The dichotomy between ‘procedural defect’ and ‘substantive illegality’ that the paper seeks to draw is misconceived (see Smith v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 Question 16: Do you have any evidence or examples of cases being brought solely on the grounds of procedural defects and the impact that such cases have caused (e.g cost or delay)? This question is misconceived – see the Smith case The Public Sector Equality Duty and Judicial Review Question 17: Can you suggest any alternative mechanisms for resolving disputes relating to the PSED that would be quicker and more cost-effective than judicial review? Please explain how these could operate in practice Judicial review should be retained for PSED challenges Without the availability of judicial review these vital challenges will not be brought Question 18: Do you have any evidence regarding the volume and nature of PSED-related challenges? If so, please could you provide this PSED arguments often form an important element in our cases Rebalancing Financial Incentives 21 Paying for permission work in judicial review cases Question 19: Do you agree that providers should only be paid for work carried out on an application for judicial review in cases either where permission is granted, or where the LAA exercises its discretion to pay the provider in a case where proceedings are issued but the case concludes prior to a permission decision? Please give reasons We totally disagree: o From bitter experience, legal aid providers not trust the LAA to properly exercise any such discretion; o The majority of JR challenges are successful and end before permission is dealt with; o JR challenges lead to better decision making; o Without JR challenges, unlawful policies and practices will be allowed to continue; o The LAA can and apply the merits criteria; o The defendant is sometimes at fault for not releasing important information at an earlier stage hence changing the prospects of success or resolving the matter once that information is released Question 20: Do you agree with the criteria on which it is proposed that the LAA will exercise its discretion? Please give reasons We decline to answer this since we feel that the proposal to have such a discretion is ridiculous and will lead to legal aid providers not taking claims at all Costs of oral permission hearings Question 21: Should the courts consider awarding the costs of an oral permission hearing as a matter of course rather than just in exceptional circumstances? No they should not Special costs rules have been developed to protect non-State parties Lord Justice Jackson investigated these in his costs review in 2009 and he felt it was important that claimants be protected from being deterred from bringing good claims Wasted Costs Orders Question 22: How could the approach to wasted costs orders be modified so that such orders are considered in relation to a wider range of behaviour? What you think would be an appropriate test for making a wasted costs order against a legal representative? The current procedure is perfectly fair and works well Any more stringent procedure will deter lawyers from taking on important cases which are also clearly going to be difficult More stringent rules will simply lead to defendants’ lawyers using the threat of WCOs as a ‘tactical defence’ Question 23: How might it be possible for the wasted costs order process to be streamlined? 22 They not need streamlining Question 24: Should a fee be charged to cover the costs of any oral hearing of a wasted costs order, and should that fee be contingent on the case being successful? Question 25: What scope is there to apply any changes in relation to wasted costs orders to types of cases other than judicial reviews? Please give details of any practical issues you think may arise Protective costs orders Question 26: What is your view on whether it is appropriate to stipulate that PCOs will not be available in any case where there is an individual or private interest regardless of whether there is a wider public interest? We support the current position on PCOs Any change will deter the bringing of claims that are in the public interest and may mean that NGOs and charities are prevented from bringing forward important cases Question 27: How could the principles for making a PCO be modified to ensure a better balance a) between the parties to litigation and b) between providing access to the courts with the interests of the taxpayer? The principles not need modification Question 28: What are your views on the proposals to give greater clarity on who is funding the litigation when considering a PCO? Question 29: Should there be a presumption that the court considers a cross cap protecting a defendant’s liability to costs when making a PCO in favour of the claimant? Are there any circumstances when it is not appropriate to cap the defendant’s costs liability? Question 30: Should fixed limits be set for both the claimant and the defendant’s cross cap? If so, what would be a suitable amount? Costs arising from the involvement of third party interveners and non-parties Question 31: Should third parties who choose to intervene in judicial review claims be responsible in principle for their own legal costs of doing so, such that they should not, ordinarily, be able to claim those costs from either the claimant or the defendant? A discretion should be retained Question 32: Should third parties who choose to intervene in judicial claims and who cause the existing parties to that claim to occur significant extra costs normally be responsible for those additional costs? 23 No they should not There is no evidence that interventions add much to overall costs Courts have a wide discretion already as to whether to allow interventions or not An intervener may have particular expertise to add to a case which may otherwise not be available to the court Interventions should not be deterred The current system works well Question 33: Should claimants be required to provide information on how litigation is funded? Should the courts be given greater powers to award costs against non-parties? Do you see any practical difficulties with this, and how those difficulties might be resolved? Question 34: Do you have any evidence or examples of the use of costs orders including PCOs, wasted costs orders, and costs against third parties and interveners? Leapfrogging Option – Extending the Relevant Circumstances Question 35: Do you think it is appropriate to add to the criteria for leapfrogging so that appeals which are of national importance or which raise significant issues (for example the deportation of a person who is a risk to national security, a nationally significant infrastructure project or a case the outcome of which affects a large number of people) can be expedited? We support these proposals Question 36: Are there any other types of case which should be subject to leapfrogging arrangements? We believe that there should be a process for potential leapfrogging from the county court Option - Consent Question 37: Should the requirement for all parties to consent to a leapfrogging application be removed? Question 38: Are there any risks to this approach and how might they be mitigated? Option – Extending the courts and tribunals in which a leapfrog appeal can be initiated Question 39: Should appeals from the Special Immigration Appeals Commission, the Employment Appeals Tribunal and the Upper Tribunal be able to leapfrog to the Supreme Court? Question 40: Should they be subject to the same criteria (as revised by the proposals set out above) as for appeals from the High Court? Are there any other criteria that should be applied to these cases? 24 Question 41: If the Government implements any of the options for reforming leapfrog appeals should those changes be applicable to all civil cases? Yes they should be applicable to all civil cases Impact Assessment and Equalities Impacts Question 42: Do you agree with the estimated impacts set out in the Impact Assessment? The Government would be particularly interested to understand the impact the proposals may have on Small and Medium sized Enterprises and Micro businesses We not agree There will be devastating effects on small legal aid firms Question 43: From your experience, are there any groups of individuals with protected characteristics who may be particularly affected, either positively or negatively, by the proposals in this consultation paper? The Government would welcome examples Romani Gypsies and Irish Travellers will be disproportionately affected There appears to be specific targeting of these two groups in the proposals as to planning cases Some of the most disadvantaged groups in society will be seriously detrimentally affected by many of these proposals – many of these will have protected characteristics Community Law Partnership 10th October 2013 25 Appendix – CLP response to Transforming Legal Aid re judicial review proposals A large percentage of the Gypsy and Traveller population who live in caravans have to resort to unauthorised encampments due to the lack of adequate sites If they are faced with a threat of eviction by a local or public authority where the authority concerned are acting unlawfully (e.g by failing to follow government guidance) then their only recourse is to seek judicial review of the authority concerned The same applies to many other areas of work covered by CLP The first stage in a judicial review application, once lodged at the court, is that a judge will decide, either on the papers or at an oral hearing, whether the case has sufficient merits and should be given ‘permission’ to proceed to a final hearing In the consultation paper, the government states, with regard to judicial review applications (at para 3.69): We propose that providers should only be paid for work carried out on an application for permission (including a request for reconsideration of the application at a hearing, the renewal hearing or an onward permission appeal to the Court of Appeal), if permission is granted by the Court This would mean, in a case where the claimant has Legal Aid, that the lawyer (or provider) would have to run the case to a permission hearing (if it got that far – see further below) without any guarantee that they would ultimately be paid for the work done Judicial review challenges to local and public authorities are a cornerstone of a democratic society They allow individuals to ensure that local and public authorities are prevented from making unlawful decisions or taking unlawful actions Without such challenges, local and public authorities can act as they please, safe in the knowledge that their actions will not be scrutinized by the Courts Michael Fordham QC has stated: Judicial review is a central control mechanism of administrative law (public law), by which the judiciary discharge the constitutional responsibility of protecting against abuses of power by public authorities It constitutes a safeguard which is essential to the rule of law: promoting the public interest; policing the parameters and duties imposed by Parliament; guiding public authorities and securing that they act lawfully; ensuring that they are accountable to law and not above it; and protecting the rights and interests of those affected by the exercise of public authority power.4 ( ‘Judicial Review Handbook’ 6th edition, Hart, 2012, p5) 26 In R v Ministry of Defence ex p Smith [1996] QB 517 at 556 D-E, Sir Thomas Bingham MR stated: …the court [has] the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power In R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] AC 513 at 567D-568B, Lord Mustill stated: To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground… In Roberts v Gwyrfai DC [1899] Ch 608 at 614, Lindley MR stated: I know of no duty of the Court which it is more important to observe, and no power of the Court which it is more important to enforce, than its power of keeping public bodies within their rights In R v Inland Revenue Commissioners ex p National Federation of SelfEmployed and Small Businesses Ltd [1982] AC 617 at 641, Lord Diplock referred to the “progress towards a comprehensive system of administrative law” as “having been the greatest achievement of the English courts in my judicial lifetime.” And now this government intends to put judicial review out of reach of everyone apart from the rich As explained above, the proposal is that Legal Aid providers will not be paid for work done on a judicial review case unless and until permission is granted At para 3.62 of the consultation paper the government state that: We consider that the appropriate way in which to address this issue is to build into the Civil Legal Aid Scheme a greater incentive for providers to give more careful consideration to the strength of the case before applying for permission for Judicial Review What is the evidence that Legal Aid providers are not already doing this? We believe that Legal Aid providers will always give very careful consideration to a matter before they consider lodging a judicial review application We would question the evidential basis for this assertion The inference appears to be that practitioners issue judicial review applications frivolously, without having considered the potential merits of such judicial review applications and in apparent contempt of well 27 established funding code guidance as to the merits This inference borders on the offensive We assert very forcefully that, in our experience, while it cannot always be clear at the outset, practitioners give proper and careful consideration to the merits of the case, the prospects of success, the remedy sought and the duty to protect the Legal Aid Fund It is a balancing act that practitioners are very adept at performing In addition, there are clear (negative) cost implications of running judicial review applications that have no merit and, as one would expect, such claims are dealt with very robustly by the judiciary What is the real evidence? The Public Law Project (PLP) have stated: On the Today Programme on 23 April 2013, the Lord Chancellor was interviewed by John Humphreys about the Government’s plans to implement changes to judicial review procedure The interview included the following exchange: Humphreys: Why are you doing it [making the changes]? The Lord Chancellor: Well let me give you a raw piece of statistic that will explain the nature of the problem In 2011, the last year we had figures available, there were 11,359 applications for judicial review In the end 144 were successful and all of the rest of them tied up government lawyers, local authority lawyers in time, in expense for a huge number of cases of which virtually none were successful We’re not saying there shouldn’t be judicial review, we’re not saying that members of the public and organisations should not be able to challenge public bodies, but what we’re saying is that we have to raise the bar so that we have fewer cases that have no chance of succeeding A brief look at the official Ministry of Justice statistics (see table of the document headed “Judicial Review Statistics 2007-2011 – tables”) shows that the Lord Chancellor’s reference to only 144 “successful” cases was misconceived This is of concern, because it suggests that the Government’s recently announced changes to judicial review procedure, and its new proposals for restricting legal aid for judicial review, were based on a misreading of the evidence and/or a misunderstanding of the judicial review process The Lord Chancellor should, more than anyone, be well aware of the constitutional significance of judicial review, as the means by which Government can be held to 28 account by the courts Restricting access to judicial review – and interfering with the checks and balances of our unwritten constitution – should not be done on the basis of misleading statistics or in an evidential vacuum The 144 figure relied upon by the Lord Chancellor is false because it only measures the number of judicial review cases that succeeded at a full hearing (as opposed to 212 that failed) But PLP’s research suggests that thousands of cases will have settled with a positive outcome for the claimant in 2011:  after the claim was issued but before the permission application was determined  after permission was refused on the papers but before the oral renewal was heard  after permission was granted but before the substantive hearing … Research done by PLP and Essex University confirms practitioners’ experience that settled judicial review cases are settled favourably to the claimant in a substantial proportion of cases It is therefore clear that a substantial proportion of the missing cases and those recorded as withdrawn will have settled on terms favourable to the claimant A careful analysis of the MoJ’s own statistics shows only 515 cases out of the initial 4,074 legally aided cases (i.e 13%) as having ended at permission without benefit to the client So as at the end of the permission stage, 87% of the sample of legally aided cases relied upon by the Government had either been settled, had ended following the refusal of permission but with substantive benefit recorded to the client, or had been granted permission For a projection of the number of successful cases in 2011, it is worthwhile noting the response to the Lord Chancellor’s statement by PLP’s Research Director, Varda Bondy, and Professor Maurice Sunkin of the University of Essex Unpacking JR Statistics, dated 30 April 20135: In summary, based on the statistics available for 2011, it can be estimated that claimants will have obtained a benefit (and by implication that their claims had merit) in www.publiclawproject.org.uk/documents/UnpackingJRStatistics.pdf 29 over 40 per cent of the civil non‐immigration/asylum claims issued in that year This percentage presents a very different image to that portrayed by the Lord Chancellor when in his radio interview on 23 April 2013 he suggested that less than 1.5 per cent of claimants are successful in judicial review proceedings (144 from 11,359 claims issued) This serious difference points to more than simply a different way of interpreting the statistical evidence It highlights significant limitations in the official statistics especially for those, including those in government, who need reliable figures on how cases proceed through the system It is insufficient to rely on statistics that only show how many decisions are taken by judges but not actually show how individual cases or cohorts of cases progress This fundamental limitation means that the official statistics provide at best an unreliable evidence base for reform; at worst they are grossly misleading Either way they not provide a sound basis for reform nor for public understanding of JR As Mark Twain has said: There are three kinds of lies: lies, damned lies and statistics! The experience at CLP reflects the research carried out by the Public Law Project In the majority of their cases the local or public authority defendant concedes the matter before the case ever gets to the permission stage It might be said that, if the local or public authority concede before the permission stage is arrived at, then the claimant will be able to obtain his/her costs in any event As is effectively accepted within the consultation paper, this is certainly not the case Often, in our experience, a local authority will concede and withdraw the relevant decision (albeit that it might be suspected that this concession has been made because the original decision was unlawful or completely wrong) without accepting that the claimant’s legal arguments were correct In those circumstances it may not be possible to obtain a costs award against the local authority Alternatively a great deal of further work might be required in making submissions to the court on the question of costs and, once again, that extra work may also prove to be fruitless if the decision is made that costs should not be awarded in the claimant’s favour CLP’s Travellers Advice Team have carried out an analysis of the judicial review cases they have run from the beginning of April 2012 to the end of March 2013 There were 11 cases Only one of those has so far reached permission stage and permission has been granted In cases, legal aid was granted, counsel instructed and we were on the verge of lodging the judicial review when the local authority conceded the matter on terms 30 favourable to our client Obviously there is no method in such cases of getting your costs paid by the other side In one case the matter was lodged, interim relief was refused and it was then too late to take the matter any further forward – this was, to date, the only unsuccessful case In one case the matter was lodged and the local authority then conceded on terms favourable to our client Since this local authority had failed to even respond to our pre-action protocol letter they agreed to pay our costs Two cases were lodged and then settled on terms favourable to our clients There was no order for costs but, in both cases, there was a potentially difficult argument about whether the defendant was a public authority or not Two cases have been lodged and put on hold pending certain matters (and before reaching permission stage) Our prediction at this stage is that both matters look as if they may settle favourably for our clients We cannot guarantee that costs will be paid by the other side, however So the tally out of these 11 cases is: Granted permission Successful and other side to pay costs Successful but no order as to costs Unsuccessful On hold 1 Putting to one side for the moment the two cases that are on hold, out of cases have either been successful or have been granted permission However we have only been paid our costs in out of those cases (though under the new proposals we would be guaranteed at least legal aid payment in the one case that has been granted permission) So we ( and counsel) would not be paid anything in out of the cases Perversely the proposals in this paper will prolong cases because: a) The claimant will not agree to an offer of settlement that does not include payment of the claimant’s costs; b) The defendant, safe in the knowledge that the claimant may not be paid at all, may push the matter on to the permission stage even though, under the current system, they might be inclined to settle the matter There is no demonstration of any understanding of the impact of the availability of Judicial Review on the administrative performance of public authorities The vast majority of JR cases not even proceed to a certificate as they are settled favourably in their early stages But public bodies would have no incentive to abide by the principles of public law in relation to poor litigants because they would know that the likelihood of proceedings actually being issued would have become minimal This effect of the proposal is not considered It is nonsense to say that 31 individuals would be able to bring such cases without the assistance of a lawyer Additionally, there is a significant failure in the consultation paper to any proper analysis of the realities of judicial review: a) There can be differing degrees permission stage; of ‘arguability’ at b) Previous research has shown that your chance of getting permission is directly linked in to which judge deals with your application; c) The defendant may, post issue of the claim, make a fresh decision which makes the application academic; d) The proposals will lead to there being more litigants in person and thus more waste of the time of the court and judges since cases involving litigants in person inevitably take longer Concern at the additional costs to the court service caused by an increased number of litigants in person has recently been expressed by the Court of Appeal In Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 23416, Lord Justice Ward stated, at paragraph 2: What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person Two problems in particular are revealed The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences Judges should not have to micromanage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous The consequences by way of delay of other appeals which need to be heard are unquantifiable The appeal would certainly never have occurred if the litigants had been represented With more and more self-represented litigants, this problem is not going to go away We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my 32 conviction that justice will be ill served indeed by this emasculation of legal aid Conclusion If these proposals are brought in then we believe that Legal Aid providers will no longer be willing to take on judicial review cases because they will not be able to risk the fact that the case will be run pro bono without any guarantee of payment This will lead to situations where people are deported to countries where they will face torture or even death, where homeless people will remain on the streets despite the fact that the local authority are in breach of their duties, where people, such as Gypsies and Travellers, will be evicted despite the fact that the local or public authority are acting unlawfully and where local and public authorities in general will have immunity to act in unlawful ways in the most serious of situations without the individual concerned having recourse to a realistic method of challenging that decision or that action Community Law Partnership 33 ... an unreliable evidence base for reform; at worst they are grossly misleading Either way they not provide a sound basis for reform nor for public understanding of JR As Mark Twain has said: There... policies and projects For cases lodged in 2012 it took, on average, around 83 days for an application to be considered for permission on the papers, and a further 95 days for decision on permission... correspondence aimed at avoiding proceedings under the Pre- Action Protocol for Judicial Review In addition, payment for work carried out on an application for interim relief in accordance with Part 25 of