The Public Law Project has issued the first formal challenge to the government’s plans for reforming the costs of civil litigation.
In a letter before action sent to justice secretary Ken Clarke, the charity’s solicitors, Leigh Day & Co, protest the lack of costs protection for those bringing judicial review proceedings.
The PLP said it does not object in principle to the government’s plan to implement Lord Justice Jackson’s recommendation to end recoverability, “provided that it is introduced in conjunction with the balancing factors recommended by Jackson LJ”, specifically qualified one-way costs-shifting (QOWCS).
QOWCS means that a claimant will not have to pay the successful defendant’s costs unless he is conspicuously wealthy or has behaved badly during the proceedings. This is being introduced for personal injury and Lord Justice Jackson recommended that judicial review claimants should benefit from it too.
However, the Ministry of Justice (MoJ) said in its recent green paper response that it is “not persuaded that the case for this has been made out at this stage”.
The PLP aims to improve access to public law remedies, such as judicial review, for those whose access to justice is restricted by poverty or some other form of disadvantage.
The PLP says it was not lawful, “on the basis of perfunctory consultation and absence of any reasoned justification”, for the MoJ to take “such a radically different path from that recommended by Lord Justice Jackson”. It also considers that the proposals themselves are unlawful in view of the UK’s common law and international law obligations to ensure access to justice to the citizen.
PLP director Diane Astin said the plan “has not been thought through”. She explained: “The proposed changes are likely to have a seriously detrimental effect on the ability of individuals and groups to challenge unlawful conduct by public bodies. The proposals for judicial review should have been consulted on properly and we urge the government to withdraw them pending a thorough consultation on the likely impact on access to justice.”
Jamie Beagent of Leigh Day & Co said: “Access to justice is a fundamental right. The MoJ’s proposals will seriously hamper that right. To undermine a key means by which the public can access the constitutional court of this country without introducing the balancing reforms recommended by Lord Justice Jackson is unjustifiable and, unsurprisingly, the MoJ has been unable to provide any justification.”
Barrister Dr Mark Friston, head of the costs team at Kings Chambers in Manchester, said the government wants to see what happens with QOWCS in personal injury claims before addressing it in non-personal injury claims. “Thus, if a challenge is to be brought, it will probably focus on issues other than QOWCS itself, such as restriction in public funding, abolition of after-the-event insurance, and so on.”
He continued: “The government, no doubt, will argue that it is rational to go back to the system that existed before the coming into force of the Access to Justice Act 1999, which, in many respects, is what the proposed reforms do. In response, the PLP will probably say that judicial review is in a special category because (a) costs protection via public funding was widely available, and (b) the issues often do not involve payments of damages. Perhaps there is a case to be made out in that regard; certainly, there will be many members of the public who will see the force of their case, and this could lead to a political response.”
Dr Friston said the solution may lie in alternatives to QOWCS. “If claimants are routinely able to prove that without some form of costs protection they will be denied access to justice, it would be open to the court to develop the jurisdiction relating to protective costs orders (PCOs). In particular, it may be that the court focuses more on article 6 rights [right to a fair trial] rather than on whether the claimant has a financial interest in the matter. Nonetheless, many claimants will fear that the costs of the application for a PCO may be made against them, so PCOs are by no means a perfect solution.”
– This story was updated on 28 April to include Dr Friston’s comments