Government response to further consultation on Judicial Review and new request for views

In July 2016, the Government published its consultation response including a request for further views on the provision of financial information to other parties, stating:

The government’s intention remains 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.

To implement these reforms, changes to procedural rules are required. The consultation sought views on the government proposals for those changes, and 39 responses were received. Having considered each response carefully, the government intends to retain the general approach on which it consulted whilst amending some points of detail, such as:

  • the information a claimant (a corporate body that can’t show that it’s likely to have financial resources to meet liabilities arising in connection with the claim) must provide on an application for permission;
  • the suggested threshold amount; and
  • the court’s ability to make a costs capping order when not all of the financial information required by the relevant rules has been provided by the applicant.

Following the consultation, and discussions with senior stakeholders, the government has decided to invite further views on one aspect of the reforms, regarding the provision to other parties of financial information provided under section 85 of the Criminal Justice and Courts Act 2015 Act (closing date for responses is 18 August 2016).

Background information:
On 22 July 2015, the government launched a consultation on Reform of Judicial Review: Proposals for the provision and use of financial information.

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 which 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 we are also consulting on the financial information that should be provided on application for a costs capping order.

To implement these reforms, provision in 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

a.    that a declaration of funding sources is required on an application for permission;

b.    that 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

c.    that 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 closed on 15 September 2015.