24 April 2014
ALAW recently reported concerns about government proposals for reform of Judicial Review, the legal mechanism for challenging unlawful decisions made by public bodies. ALAW responded to the consultation, Judicial Review: Proposals for further reform focusing on three key areas where we were concerned that proposals would impact disproportionately on animal welfare: standing, third party interventions and protective costs orders (PCOs).
In February 2014 the Ministry of Justice published a response to the consultation.
The good news in the Government’s response is that it plans to make no changes to the test for standing to bring a judicial review. The present test requires that a claimant demonstrate ‘a sufficient interest in the matter to which the application relates’ (Senior Courts Act 1981, section 31). ALAW was particularly concerned that a narrowing of the rules on standing would render many decisions effectively unchallengeable, since animals have no legal personality and animal welfare groups would be unlikely to demonstrate a ‘direct’ interest in the decision impugned.
Instead, the Government is proposing a package of financial reforms to deter weak claims being pursued. The financial reforms include proposals to reduce the availability of Protective Costs Orders (PCO’s) in non-environmental cases by introducing primary legislation to ensure that a strict approach is taken to deciding whether it is in the ‘public interest’ that the issues in the claim are resolved; that PCOs should only be available once permission to proceed to judicial review has been granted by the court and only where a claimant would otherwise discontinue the claim and would be acting reasonably in doing so, if a PCO was not granted. Further, where a PCO is granted there should be a presumption that the court will also include a cross cap on the defendant’s liability for the claimant’s costs.
The Government has also decided against altering the rules on intervening in a judicial review, which could potentially have limited the ability of groups and organizations to raise concerns in a judicial review about animal welfare issues of wider public interest. However, the proposed financial reforms include proposals that groups who make an application to intervene will bear not only their own costs, but also potentially costs arising to other parties from their intervention.
Animal welfare groups may be unable to bear the financial risk of a costs order resulting from an intervention and the impact of this will be greater still if a PPO is unavailable. There is therefore a significant risk that issues of public importance will not be raised unless the group is requested by a court to intervene. As ALAW pointed out in the response to the consultation, the experience of ALAW and its members is that courts often benefit from the interventions of groups who have specialist knowledge and expertise in an area and in the field of animal welfare this is particularly important to counter balance situations where individuals with a private interest may challenge governmental decisions aimed at protecting animal interests.
A further financial disincentive to groups funding litigation is a proposal to introduce primary legislation requiring an applicant to provide information on funding at the outset of a judicial review and giving a greater power to the courts to make costs orders against non-parties. ALAW was opposed to affording the courts greater power to award costs against non-parties which we believe is not in the interests of justice, particularly in the area of animal welfare where any intervention is wholly altruistic. These financial reforms are therefore disappointing.
We believe there is a powerful case for recognizing within the primary legislation or in guidance to the courts the parallels with environmental cases, where the subject of the challenge has no legal personality and issues of public interest can only be raised by groups who themselves have no direct interest and are motivated by altruistic considerations. ALAW will therefore lobby for due weight to be given to these matters when animal welfare issues of general public importance are raised in judicial review claims and interventions.