CPR changes in August 2016—judicial review costs capping orders

24096255_xlThe 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.

CJCA 2015, ss 88–90

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:

  • CJCA 2015, s 88—sets out the conditions which must apply. It contains some differences to the guidelines set out in Corner House and also sets out when the court can make a costs capping order
  • CJCA 2015, s 89—sets out the matters which the court must have regard to when determining whether to make a costs capping order and these broadly reflect the guidelines set out in Corner House although there is a new express requirement to consider the extent of the financial backers in the proceedings (rather than just the claimant), reflecting new financial disclosure provisions in CJCA 2015, ss 85–86
  • CJCA 2015, s 90—this deals with costs capping orders in environmental cases—this enables the Lord Chancellor to provide that CJCA 2015, ss 88–89 do not apply to judicial review proceedings which 'have as their subject an issue relating entirely or partly to the environment'

Changes to CPR and practice directions

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.

CPR 3

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.

CPR 46

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:

  • 16—judicial review costs capping orders—general. This defines a judicial review costs capping order and CJCA 2015
  • 17—application for judicial review costs capping orders. This sets out the requirements for making such an order. It requires an on notice application under CPR 23, supported by specific evidence. The court may dispense with the need for the service on one or more parties of evidence setting out a summary of the applicant's financial resources. The court may also direct the provision of additional information or evidence to support the application
  • 18—court to consider making directions. This applies if the applicant is a body corporate and is unable to demonstrate that it would have resources to meet any liability arising out of the proceedings. In such cases the court must give directions for the provision of information about the applicant's members and their ability to provide financial support
  • 19—applications for vary judicial review costs capping orders. Such applications must be made on notice under CPR 23. As with the application for such an order the court may dispense with the need for the service on one or more parties of evidence setting out a summary of the applicant's financial resources

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.

CPR PD 46

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.

Filed Under: CPR , CPR Updates

Relevant Articles
Area of Interest