2013 Response to Judicial Review: Proposals for Reform (January)

Introduction

NORA members are resident groups in England and Wales. They represent about two million residents. Their main involvement with the law is related to licensing and planning decisions taken by local authorities. Where there is the opportunity to appeal such decisions, residents avail themselves of them and rarely need to seek Judicial Review.

Seeking Judicial Review is an expensive process and few resident groups have the funds to do so. In the event of a problem that merits Judicial Review, residents need much time to seek appropriate legal advice, to consider mediation and to organise fund raising to meet the expense. The three months currently the period of notice is barely adequate for this process for residents.

Figure 1 in the Consultation Paper describes a considerable rise in the number of Judicial Reviews particularly in the last seven years, but reveals that this rise is entirely related to immigrants and asylum seekers seeking Judicial Reviews. Figure 1 shows that for the past seven years all other Judicial Reviews for criminal cases and for 'other cases' are virtually unchanged at around 2000 a year.

NORA understands that the reform is intended to reduce the number of applications for Judicial Review and to hasten the determination of those that are granted, and it supports this policy. If the decision to deflect appeals by immigrants and asylum seekers to the Upper Tribunal mechanism will significantly reduce the number seeking Judicial Review, that should suffice to meet the first aim.

Several but not all of the measures designed to hasten the resolution for all 'other' cases would appear appropriate. This view colours the answers to the questionnaire. This response has been circulated to all NORA members and received their support.

ANSWERS to Questions

Time Limits

Question 1: Do you agree that it is appropriate to shorten the time limit for procurement and planning cases to bring them into line with the time limits for an appeal against the same decision?

No.

For Residents' Associations, seeking legal advice, mediation and fund-raising to meet the costs takes time, and three months is barely long enough.

Question 2: Does this provide sufficient time for the parties to fulfil the requirements of the Pre-Action Protocol? If not, how should these arrangements be adapted to cater for these types of case?

No.

It may, however, be appropriate for procurement cases, which are not the concern of residents.

Data is lacking on key issues so that it is not clear how many Judicial Reviews would be affected by the proposal to reduce the three month period to six weeks. There may not be many Judicial Reviews dealing with planning decisions raised by residents, but the current level of three months is barely sufficient for residents who do go down this route.

To reduce the time to just six weeks for residents to consider mediation, seek legal advice and raise the funds needed for Judicial Review would be highly likely to deter residents from seeking Judicial Review. This would not be fair to residents.

Question 3: Do you agree that the Courts' powers to allow an extension of time to bring a claim would be sufficient to ensure that access to justice was protected?

No.

To delegate the decision whether or not this time limit should be extended is inadequate to protect the rights of residents to pursue to correct an injustice. The time limit needs to be firmly defined and not left to the discretion of the Courts. The change would introduce a degree of uncertainty about whether or not an extension would be granted which would put further, unfair pressure on residents' groups in an area where they are already at a disadvantage (because they will not normally have any prior experience of the process to guide them).

Question 4: Are there any other types of case in which a shorter time limit might be appropriate? If so, please give details.

No comment.

Time limits in cases where there are continuing grounds

Question 5: We would welcome views on the current wording of Part 54.5 of the Civil Procedure Rules and suggestions to make clear that any challenge to a continuing breach of multiple decisions should be brought within three months of the first instance of the grounds and not from the end or latest incidence of the grounds.

No comment.

Question 6: Are there any risks in taking forward the proposal? For example, might it encourage claims to be brought earlier where they might otherwise be resolved without reference to the court?

No comment.

Applying for Permission

Option 1:

restricting the right to an oral renewal where there has been a prior judicial hearing of substantially the same matter

Question 7: Do you agree with the proposal to use the existing definition of a court as the basis for determining whether there has been a 'prior judicial hearing'? Are there any other factors that the definition of 'prior judicial hearing' should take into account?

NORA agrees with the proposal, and has no comments on the definition of 'prior judicial hearing'.

Question 8: Do you agree that the question of whether the issue raised in the Judicial Review is substantially the same matter as in a prior judicial hearing should be determined by the Judge considering the application for permission, taking into account all the circumstances of the case?

Yes.

Question 9: Do you agree it should be for the defendant to make the case that there is no right to an oral renewal in the Acknowledgement of Service? Can you see any difficulties with this approach?

NORA agrees with the proposal and sees no difficulties with this approach.

Option 2:

restricting the right to an oral renewal where the case is assess as 'totally without merit'

Question 10: Do you agree that where an application for permission to bring Judicial Review has been assessed as 'totally without merit', there should be no right to ask for an oral renewal?

NORA agrees with the proposal.

Question 11: It is proposed that in principle this reform could be applied to all Judicial Review proceedings. Are there specific types of Judicial Review case for which this approach would not be appropriate?

No.

Question 12: Are there any circumstances in which it might be appropriate to allow the claimant an oral renewal hearing, even though the case has been assessed as totally without merit?

No.

Combining options 1 and 2

Question 13: Do you agree that the two proposals could be implemented together? If not, which option do you believe would be more effective in filtering out weak or frivolous cases early?

NORA agrees with combining options 1 and 2.

Fees

Question 14: Do you agree with the proposal to introduce a fee for an oral renewal hearing?

NORA agrees with the proposal.

Question 15: Do you agree that the fee should be set at the same level as the fee payable for a full hearing, consistent with the approach proposed for the Court of Appeal where a party seeks leave to appeal?

NORA agrees with the proposal for setting the fee.

Equality Impacts

Question 16: 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 paper?

No comment.

We would welcome examples, case studies, research or other types of evidence that support your views. We are particularly interested in evidence which tells us more about applicants for Judicial Review and their protected characteristics, as well as the grounds on which they brought their claim.

No comment.

January 2013                                                 Alan B Shrank - NORA chairman