In a column in the September issue of Legal Action, Young Legal Aid Lawyers helpfully summarised Jackson LJ’s proposals for capping costs in judicial review. Those proposals, published on 31 July 2017, came almost simultaneously with the seminal judgment in R (Unison) v Lord Chancellor and Equality and Human Rights Commission and another (interveners)  UKSC 51;  3 WLR 409 and are worth considering in tandem, write Jo Hickman and Alison Pickup.
Access to justice lies at the core of this review, just as it lay at the core of my previous review. Controlling the costs of litigation and providing clarity as to each party’s financial commitment are vital elements in achieving access to justice.
In Unison, Lord Reed referred to ‘the constitutional right of unimpeded access to the courts’ (para 76) and emphasised that this common law right not only prohibits ‘barriers’ to the bringing of proceedings but also demands that ‘impediments’ to access to the courts have both clear statutory authorisation and are limited to that which is ‘reasonably necessary to fulfil the objective of the provision in question’ (paras 78–80). The Supreme Court also emphasised the importance of focusing on the practical reality of access to justice, and not merely on its theoretical availability, a focus of the common law that chimes with the importance placed by the European Court of Human Rights on ensuring that rights are ‘not theoretical and illusory, but practical and effective’ (para 109).
The judgment in Unison materially elevates the significance of Jackson LJ’s findings and recommendations.
While the Supreme Court in Unison was concerned with the impact of fees on bringing claims in the employment tribunal (ET), it is plain that the costs of litigation can constitute a significant impediment to access to the courts. That is true for both the costs of funding the litigant’s own representation, where such representation is reasonably required to enable effective access to the courts, and the risk of being ordered to pay an opponent’s costs at the end of the case. The judgment materially elevates the significance of Jackson LJ’s findings and recommendations. It appears clear that domestic costs regimes may frustrate the fundamental rights restated in Unison. The Unison judgment is also significant for the emphasis that the court placed on the societal value of justice, which goes beyond its importance to individual litigants. As Lord Reed explained (at para 68):
Courts exist in order to ensure that the laws made by parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by parliament may be rendered nugatory, and the democratic election of members of parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
And while this is true of all forms of litigation, it is particularly true of judicial review, given the special constitutional role it plays in providing a mechanism by which citizens can hold the state to account, as was made clear by Jackson LJ (page 126, para 1.1 of the supplemental report).
The Supreme Court in Unison condemned the idea that the taxpayer obtains no value from cases in which they have no personal interest. This was the Ministry of Justice’s (MoJ’s) erroneous starting point in relation to ET fees and is one that is likely to have fundamentally skewed any number of impact assessments and policy decisions, both formal and informal, that have arisen in the justice context in recent years. Taxpayers do not get ‘value’ from a justice system that fails to provide access to justice.
Why not QOCS?
In Review of civil litigation costs: final report
(December 2009), Jackson LJ proposed a regime by which all personal injury claimants and all judicial review claimants would benefit from protection akin to that which Access to Justice Act 1999 s11 then conferred on legally-aided claimants, with exceptions where, for example, claimants behaved unreasonably.1Costs protection in identical terms for legally-aided persons is now provided by Legal Aid, Sentencing and Punishment of Offenders Act 2012 s26.
The proposal became known as qualified one-way costs shifting (QOCS). In the event, the government adopted QOCS for personal injury claimants only.
In his 2009 report, Jackson LJ recommended the introduction of QOCS in cases where there is typically an asymmetry between the resources and power of defendants and those of claimants, such that QOCS would assist in rebalancing that asymmetry and thereby promote access to justice. In the period since that recommendation, while it may not have expressly rejected Jackson LJ’s proposals, the government has implemented reforms to judicial review through the Criminal Justice and Courts Act 2015 (CJCA), which were expressly designed to ‘rebalance’ the procedure in favour of defendant public authorities by ensuring that ‘claimants ... bear a more proportionate degree of financial risk when they decide to pursue a case’ (Judicial review – proposals for further reform: the government response
, Cm 8811, February 2014, foreword by Chris Grayling).
Nonetheless, Jackson LJ records that the MoJ made a point of emphasising to him at a meeting in April 2017 that ‘the government did not “reject” my previous recommendation for QOCS in JR cases. The position is that the government has neither accepted nor rejected that recommendation. It has simply not implemented the recommendation’ (page 75, para 16.9 of the supplemental report). However, he concluded that ‘it is probably realistic to proceed on the basis that QOCS in JR is not going to come’ (page 127, para 1.6) and premised his recent recommendations on that basis.
A lack of executive appetite for QOCS in judicial review might be understandable, but in circumstances in which Briggs LJ has described the introduction of QOCS in personal injury claims as ‘a powerful promoter of access to justice, in an area where the playing field is at first sight sharply tilted against the individual claimant’ (Civil courts structure review: final report
, July 2016, page 42, para 6.29), and in which the Supreme Court has now provided such a stark reminder about the importance to be attached to genuine access to the court, it would be desirable if the MoJ were to approach the question afresh with a genuinely open mind.
In the alternative
As a pragmatic alternative, Jackson LJ recommended the extension of the Aarhus Rules,2Ie, the optional rules in Section VII of Civil Procedure Rules Part 45, which apply to ‘Aarhus Convention claims’ as there defined.
which currently apply to certain environmental judicial reviews, to all judicial review proceedings where the claimant is an individual who is not in receipt of legal aid, with certain modifications designed to promote access to justice. He explained that in his view this was ‘necessary in order (a) to increase access to justice and (b) to promote the public interest’ (page 129, para 3.2 of the supplemental report).
This recommendation is welcome (with some qualifications) and, if adopted, together with the safeguards proposed by Jackson LJ, will undoubtedly improve access to justice for some at least. It is particularly welcome that Jackson LJ appears to have rejected the view expressed by government lawyers that there is no access to justice problem in judicial review proceedings. To be fair, government lawyers contributed to the review in their capacity as individual lawyers with significant experience of representing government departments in judicial review proceedings, rather than as representatives of the government speaking from a position of principle. It is nonetheless concerning that they doubted the existence of an access to justice problem in this context.
One would have thought it uncontroversial that the prospect of facing a liability to pay one’s opponent’s costs, which could run into tens, or even hundreds, of thousands of pounds, would act as a deterrent for all but the wealthiest claimants with the clearest prospects of success. Those who are desperate, do not understand the risk to which they are exposed, or have literally nothing to lose, may not be deterred. But for those of modest means who are ineligible for legal aid (a growing proportion of the population), the alternatives to secure costs protection for judicial review claims are limited. After-the-event insurance is for practical purposes unavailable and unaffordable for judicial review proceedings.
Big business is able to litigate to protect its interests. So too, for now, are the very poorest, a dwindling number of whom remain able to access legal aid. (Though we note the number of judicial review claims for which legal aid is granted has been in steady decline over recent years, with around 22 per cent fewer legal representation certificates for judicial reviews granted in 2016/17 than in 2015/16, despite technically remaining in scope.)3Figures taken from Legal aid statistics in England and Wales. January to March 2016, MoJ and Legal Aid Agency, June 2016 and Legal aid statistics in England and Wales. January to March 2017, June 2017.
That leaves a significant swathe of the population, from the ‘just about managing’, who no longer qualify for legal aid, right up to the relatively well-off, all realistically unable to access the judicial review court. Our hypothesis is that meritorious claims from that wide section of society are significantly under-represented. PLP research
has in the past shown that in the judicial review context, tangible benefits are obtained in a higher proportion of cases funded by legal aid compared with those funded from other sources (65 per cent compared with 42 per cent of cases).
The protection currently afforded by costs capping orders (CCOs, under CJCA ss88–90) referenced by government lawyers, although important in public interest litigation, is inadequate because it is only available in public interest proceedings and only once a decision on whether to grant permission to apply for judicial review has been made. As the Supreme Court emphasised in Unison, the public interest in access to justice is not limited to cases that decide public interest issues, or even in the bringing of meritorious claims only, but includes the importance of ensuring that the laws made by parliament can be enforced when necessary.
Jackson LJ found in 2009 and again in 2017 that there is an access to justice problem in judicial review. The risk of being ordered to pay a defendant public authority’s costs is too great for any but the wealthiest litigants to take without costs protection. CCOs and legal aid provide that protection in some cases but for very many individuals of modest means, seeking to hold public authorities to account, those protections are not available. The implementation of QOCS or the extension of the Aarhus Rules, with the protections proposed by Jackson LJ, will significantly increase access to the judicial review court and thereby promote the rule of law. If, as the Civil Justice Council recently found in the case of actions against the police, further research and evidence-gathering is required to demonstrate the need for change to the government, it is in the hands of the MoJ to undertake transparent analysis of its own data, and/or to facilitate access to the data necessary to understand the scale of the problem and identify the most effective means of addressing it.