Update on Judicial Review reform

In May 2013, we reported on Government plans to reform judicial review procedure. The Civil Procedure (Amendment No.4) Rules 2013 (SI 2013/1412) have now been passed to make these amendments to the Civil Procedure Rules. The changes take effect from 1 July 2013.

The reforms aim to: 

• discourage potential claimants from bringing weak, frivolous or unmeritorious claims; 
• ensure claims are brought quickly; and 
• prevent the progression of weak cases early on.

Time limits for issuing claims

The rule, at CPR 54.5, that a claim for judicial review must be brought "(a) promptly; and (b) in any event not later than three months after the grounds to make the claim first arose" is unchanged by the Amendment Rules.

However, the Amendment Rules create some important exceptions to this for claims involving procurement or planning decisions.

Procurement

To judicially review a "decision governed by the Public Contracts Regulations 2006", the claim form must be filed within the time required by reg.47D(2) of the Public Contracts Regulations 2006. In effect, this is 30 days from the date that the claimant knew, or ought to have known, that the grounds for review had arisen.

A "decision governed by the Public Contracts Regulations 2006" is defined in the CPR by the Amendment Rules as “Any decision the legality of which is or may be affected by a duty owed to an economic operator by virtue of regulation 47A of those Regulations (and for this purpose it does not matter that the claimant is not an economic operator).”

This means broadly that judicial review no longer presents a possible route of challenge for a party that has missed the strict time limits in the Public Contracts Regulations, whether or not that party is in the bidding process or not. Note that the longer three month period will still apply where the challenge to the procurement process is not based on a breach of the Public Contracts Regulations 2006.  This could include whether the challenge is based on a failure to consult generally (for example in the recent judicial review against Barnet LBC).

Planning

Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the "Planning Acts" (meaning that decisions on planning policy fall outside this rule), a party must issue its claim form no later than six weeks from the point at which the grounds first arose.
 
This change brings the judicial review time limit in line with s.288 of the Town and Country Planning Act 1990, which states that the six week time limit begins when the relevant decision is made.

These new time limits will only apply to claims where the grounds for challenge arose after 1 July 2013.

During the consultation, the Government suggested that the Pre-action Protocol for Judicial Review should not apply to procurement or planning cases, due to the new time limits. This has not been acted on yet, so parties must try to follow the pre-action protocol, where possible, despite the short time limits imposed.

Applications for oral permission

For claims issued up to 1 July 2013, where an applicant is denied permission for a substantive hearing on the papers, a claimant has the automatic right to an oral permission hearing.

For claims issued after 1 July, the claimant will not have the right to an oral hearing where the judge decides that the case is "totally without merit". This is intended to remove weak or frivolous claims from the court system early, freeing up time to hear genuine disputes.

The danger of a case being ruled "totally without merit" at such an early stage, coupled with the new shorter time limits for certain actions, means that there needs to be an increased focus on ensuring that a claimant's case is as strong as possible at the outset of the litigation. It may be that a number of judicial review claims are issued before 1 July, to avoid the possibility of a "totally without merit" judgment on the papers.

Where permission is refused and a claim is said to be "totally without merit", the only option for a claimant is to appeal to the Court of Appeal.

Fees

Currently, it costs £60 to issue a claim for judicial review and a further £215 to continue the claim if permission is granted.

The Government intends to increase these fees to further deter frivolous claims. It also intends to introduce a fee for claimants that apply for an oral hearing after permission has been refused, to make a claimant think about carefully about whether to continue. The plans for the fee changes are set out in our 7 May 2013 Alert.

These increases are not dealt with in the Amendment Rules, but they are expected to take effect this summer. We will issue a further update once the new fee structure is confirmed.