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The provisions in Part 4 of the Criminal Justice and Courts Act 2015 (CJCA 2015) deal with costs capping orders in judicial review proceedings, which will come into force on 8 August 2016. The sections when in force will necessitate changes to CPR 3, CPR 46 and CPR PD 46 and we have been advised by the Ministry of Justice that the CPR changes will also come into force on 8 August 2016, transitional arrangements will apply.
Update: this has been updated to refer to the Criminal Justice and Courts Act 2015 (Commencement No. 4 and Transitional Provisions) Order 2016, SI 2016/717 which brings into force CJCA 2015, ss 88–90 on 8 August 2016.
These sections come into force on 8 August 2016. They create a new type of costs capping orders for judicial review cases to replace protective costs orders (PCOs). Note, these are different to the costs capping orders in CPR 3. Such orders are defined
in CJCA 2015, s 88(2) as:
'an order limiting or removing the liability of a party to judicial review proceedings to pay another party’s costs in connection with any stage of the proceedings.'
The primary purpose of the provisions is to provide the same statutory protection currently available through the common law protective costs orders (PCO orders)—protection afforded under the guidelines set out in Corner House. While PCO
orders are rare they are important to enable access to justice in public interest cases which might not go ahead save for the costs protection. The three sections cover the following:
There will be minor amendments to CPR 3 dealing with costs capping orders with more substantive amendments to CPR 46 and CPR PD 46 which deal with special costs cases. These amendments come into force on 8 August 2016.
The amendments are to CPR 3.19 and substitute the existing provisions to provide new definitions for a 'costs capping order' and 'future costs'. The provision will specifically state that it does not apply to judicial review costs capping orders made
under the CJCA 2015, Pt 4 or to PCOs.
Note transitional arrangements will apply so that the new provisions will not apply to judicial review cases where the claim form was filed before CJCA 2015, ss 88–90 come into force.
Costs in relation to judicial review or protective costs orders are to be dealt with by new provisions in CPR 46 under a new Section VI headed: Judicial Review Costs Capping Orders under Part 4 of the Criminal Justice and Courts Act. This comprises the
following new rules:
Note transitional arrangements will apply so that the new provisions will not apply to judicial review cases where the claim form was filed before Monday 8 August ie before CJCA 2015, s 88–90 come into force.
The amendments provide for a new para 10.1 in the practice direction to deal with the judicial review costs capping orders under CJCA 2015, Part 4 which will be addressed in rules 46.16 to 46.19. The new provision will read as follows:
'10.1 Unless the court directs otherwise, a summary of an applicant’s financial resources under rule 46.17(1)(b)(ii) must provide details of—
(a) the applicant’s significant assets, liabilities, income and expenditure; and
(b) in relation to any financial support which any person has provided or is likely to provide to the applicant, the aggregate amount—
(i) which has been provided; and
(ii) which is likely to be provided.
10.2 An application to the High Court for a judicial review costs capping order must normally be contained in, or accompany, the claim form.'
Note: transitional arrangements will apply so that the new provisions will not apply to judicial review cases where the claim form was filed before CJCA 2015, ss 88–90 come into force.
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