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Lord Justice Jackson Publishes Comments on Fixed Recoverable Costs in Judicial Review

on Monday, 31 July 2017.

Lord Justice Jackson has today (31 July 2017) published his second report into costs in civil litigation. His comments and suggestions on costs in Judicial Review (JR) cases will be of interest to many public sector bodies.

Those of us already involved in JR of planning and environmental decisions will be familiar with the Aarhus Rules which were introduced into CPR Part 45. For cases affecting the environment, claimants can elect to invoke the Aarhus Rules and cap their own liability for the defendant's costs at £5k for an individual and £10k for a corporate body. The defendant's costs in the vast majority of JR claims will exceed these costs. The reason for the caps is to provide for easier access to justice. If the claimant invokes the Aarhus Rules, the defendant's liability for the claimant's cost is capped at £35k.

As of February 2017, the limits have been subject to means testing of the claimant and can be varied up or down as the court see fit.

The Recommendations

Jackson LJ has made two recommendations today:

  1. the Aarhus Rules be extended to all JR claims
  2. costs budgeting should be introduced for what Jackson LJ refers to as 'heavy JR claims' - ie those which are large in scope or complexity, meaning they last several days and are prone to spiralling costs.

A point to remember is that the claimant does not have to invoke the Aarhus Rules - it is optional. This is why costs budgeting is suggested as well.

Whilst only recommendations it is likely that these will be introduced soon. The Government's response to this paper will include further consultation but this may happen quickly. Having said that, it is unclear what effect will Brexit have on the Government's appetite for instituting these reforms. Will the Civil Service have enough time? JR claims against Government decisions relating to Brexit will be covered by this extension. Will there be some dilution of the recommendations for political expediency?

We can only speculate on the answers to these questions but as this is only part of a review of the whole of civil litigation, it is likely to come forward as a package of proposals. This could come very soon.

The Implications

One of the participants in Jackson LJ's review estimated that only 1% of JR claims are currently covered by the Aarhus Rules. This extension might embolden claimants, especially at a local level where the risk may have put people off challenging the smaller decisions. Whilst JR claims will still be subject to the initial testing of merits on paper, there just might be more of them soon.

You can read the full review for more information.

For more information relating to Judicial Review, please contact David Bird in our Planning & Infrastructure team on 0117 314 5382.

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