Rosemary Garstang

Costs in judicial reviews have historically adopted the traditional mechanism whereby the loser pays the winner’s costs.  The risk of being ordered to pay a defendant public authority’s costs, being considered by many, to be too great for any but the wealthiest litigants to take without costs protection.

Under the ‘Aarhus Costs Rules’ costs capping in judicial review has originally been limited to environmental claims and in February 2017 was extended to cover some planning cases.

The MoJ’s current proposals are for a costs regime specifically for cases which fall within Aarhus and the Public Participation Directive. Under this regime, the normal outcome of an environmental judicial review claim which succeeds at trial will be that the claimant recovers costs of £30,000.00.  The normal outcome of an environmental judicial review claim which fails at trial will be that the defendant recovers costs of £5,000.00.

Lord Jackson has considered the best course of action to be the introduction of QOCS for these types of claims but although the government accepted his recommendation to introduce this for personal injury and clinical negligence claims their decision was ‘at this stage’ not to extend QOCS further.

In his response to MoJ Consultation paper “Costs Protection for Litigants in Environmental Judicial Review Cases” LJ recognises the present problem of devising costs rules for environmental judicial review cases which (a) are fair to both parties, (b) facilitate access to justice, (c) cater for the wide diversity of such cases and (d) comply with the UK’s international obligations is an intractable one.  In particular:

  • He considered pure one way costs to be a non-starter on the basis that a global corporations could bring a judicial review claim to protect its own commercial interests and in losing could be absolved of any liability for costs;
  • Protected Costs orders are unsatisfactory as they tend to generate hard fought satellite litigation and drive up costs substantially;
  • QOCS (being the preferred solution) has not found favour with a number of public authorities on the basis that it is too generous to claimants. It has not found favour with a number of claimant bodies for the opposite reason, namely, that it provides insufficient protection for claimants.

The ministry states that parties can take out ATE insurance for judicial review claims, paying the premium if the case is successful.  However, in response to this, the public law charity, Public Law Project insists that ATE insurance has always been difficult to secure for these types of cases.

Not being able to recover premiums in the event of victory has made it ‘almost impossible’ to obtain ATE in the majority of judicial review claims.

Clearly the introduction of QOCS for these types of claims would assist ATE insurers in being able to offer a tailored product suitable for a claimant’s needs at a competitive premium.

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Government urged to extend costs-shifting to Judicial Review Claims