affiliated to the International Association of Constitutional Law
What is the most important issue in public law? You might be forgiven for thinking it is the gradation of principles of substantive review, or the proper limits of judicial interventionism, or even the scope of residual prerogative powers. But you would be wrong.
There is a much, much graver and more urgent issue in public law and it is this: the majority of the population cannot bring a judicial review claim.
How, you might ask, can this be? After all, have not the courts liberalised the law of standing and are not the courts open to all? This is indeed so. But it demonstrates only that the problem I am raising goes to the very heart of public law as a jurisdiction. It is the central conceit of public law that it represents a jurisdiction that has been developed by the courts to protect individuals from abuses of power committed by public officials. The cases and textbooks are replete with self-congratulatory descriptions of public law in such terms. Indeed the courts often rely on the supposed availability of judicial review as a reason for upholding the proportionality of coercive measures. For a recent example consider R (XH & AI) v SSHD  EWCA Civ 41 at  where the court said, “an individual whose passport has been cancelled is not left without a remedy” because the decision is “subject to judicial review”.
The reality is otherwise. Most people could not bring a judicial review. That is not because there is any legal prohibition on them bringing a claim. They could theoretically do so. But as all public lawyers know, a mere theoretical entitlement does not count as a right. To register as a right an entitlement must be capable of actually being exercised and enjoyed.
The vast majority of the population have no access to judicial review in any meaningful sense. This is because of the rule, derived from private law, that if a claim is lost the claimant must pay the costs of the defendant and, potentially, also of any interested party. Even if an individual acts as a litigant in person or negotiates a no-win-no-fee (or reduced fee) arrangement with lawyers, they have no control and no visibility over the level of potential adverse costs. Many individuals would be bankrupted by an adverse costs order. Even those who would not be bankrupted could not rationally be expected to risk their savings, or the equity in their house, in bringing a judicial review claim to protect themselves and their family from arbitrary action by a public body.
The amount of adverse costs claimed by successful defendants varies widely. For a very simple two hour judicial review against a government department the costs of losing at trial would probably be in the region of £8-12,000. This is the cheapest end of the spectrum, as a claim against central government Counsel will be acting on Attorney General’s Panel rates (well below commercial rates) and all solicitors work will be done in house. A moderately complex claim lasting a day and not brought against a central government department – say, a regulatory body – using external solicitors would be expected to cost in excess of £40,000 (plus VAT) and potentially over £100,000. For a substantial two day judicial review the cost range is probably between £80,000 and £200,000. But these are all fairly loose estimates, and the inability to predict costs with certainty is an additional problem. The potential for interested parties to seek their costs adds to this mêlée. Whilst the default position is that interested parties cannot recover their costs, they sometimes do so and very often ask for them. Since they are often private companies affected by a decision the risk of having to pay their costs will very often deter a claim from being brought.
One of the reasons why it is difficult to give even reasonably precise figures is that the costs following trial are often put off to detailed assessment (months of horse trading and ultimately, if no deal is struck, adjudication, at further cost, by a costs judge). To give more concrete figures, we can look at permission stage costs which are ordered by a judge following the refusal of permission where the court summarily assesses adverse costs in a specified amount. In one recent unexceptional judicial review which would have had a one day trial concerning an allegedly defective investigation conducted by public body land owner, the permission judge refused permission with costs of over £5,000. In a similarly sized challenge to the Advertising Standards Authority the permission judge awarded adverse costs of over £3,000. These are unexceptional figures in unexceptional cases. And they are merely the costs of the permission stage.
Given that students are taught that judicial review is a simple and quick procedure, decided without trials of fact on the papers, such costs levels may seem extraordinary. One of the reasons the costs are high is that claims for judicial review must be brought in the High Court (or in some cases Upper Tribunal) even if they have no monetary value at all. By contrast, in ordinary civil litigation claims with a value of less than £10,000 are brought on the small claims track where litigants cannot recover their legal costs. More complex and slightly higher value claims (up to £25,000) are subject to a fast track with a costs limits on trials in region of £2,000. Judicial review is outside these regimes. Even for straightforward claims, a defendant must instruct solicitors and counsel. The fact that issues of law are raised usually calls for citation of authorities and legal submissions are rarely short on either side. Moreover, judicial review claims invariably raise issues that are considered important to the defendant on grounds of principle, often because of perceived implications for other cases. Therefore where they are fought, they tend to be well resourced by defendants.
In short, judicial review provides a Rolls Royce form of litigating disputes with public bodies. The problem with judicial review is that most people cannot afford a Rolls Royce.
Judicial review is of course not the only area of litigation where there is a serious access to justice problem caused by the risk of adverse costs. In his final report in 2010, Lord Justice Jackson said this about personal injuries litigation:
“First and self-evidently, the claimant is an individual. For the vast majority of individuals it would be prohibitively expensive to meet an adverse costs order in fully-contested litigation. The most recent Social Trends report shows that 73% of all households have savings (made up of securities, shares, currency and deposits) of less than £10,000. Defence costs can easily be many times higher than £10,000 in fully-contested litigation. This would mean that for three quarters of households their other financial assets (their own home in most cases) would be at risk from an adverse costs order.” (Final Report, Ch. 19 §1.2)
These sentiments could be applied to challenges to public authority decisions impacting individuals.
But, it might be asked, if this is really the case, how is it that so many judicial reviews are commenced? The answer is that judicial review is accessible to the following categories of people: (1) Individuals, organisation and companies with very deep pockets. In practice this seems to mean very high net worth individuals, successful and established companies and public authorities (such as local authorities challenging central government decisions). (2) Individuals who have relevant litigation insurance. In practice, this seems only to mean professionals in regulated professions challenging disciplinary decisions, such as financial advisers, doctors and dentists. (3) Individuals, companies and other organisations who have costs protection.
The first of these two categories needs no elaboration. The third is where the interest lies. Costs protection is available to individuals and small business in the following circumstances.
(i) Legal aid
Individuals can apply for legal aid. The most important thing about legal aid, at least as it applies in the field of public law, is not that it provides a source of funding for a person’s lawyers but because it comes with protection against an adverse costs order. It is for this reason that eagle-eyed readers of the law reports will have spotted that a large percentage of reported judicial review claims, in particular those that get to appellate levels, are brought by impecunious individuals acting on legal aid.
However, today very few people now qualify for legal aid. This in part because of substantial restrictions on the scope of cover. It is in part because of the means test. Those who have savings or other capital of over £8,000 (or £3,000 in immigration cases) are not eligible for legal aid, whilst those whose “disposable income” is over £733 per month are also not eligible for any legal aid. “Disposable income” means income after tax, NI and rent and therefore does not take into account council tax, bills and travel expenses, as well as all of a person’s personal expenses or mortgage contributions, for both that person and their family. In other words, people who have £169.15 or more per week for themselves and their family to live off, or who have any significant assets, do not qualify for legal aid. To put this in perspective, £165 is the rate for a single hour of a solicitor’s time of a Grade C fee earner in a London Grade 3 (outer London) solicitors firm.
(ii) Aarhus claims
A opt-in costs protection regime applies in the context of environmental claims by which claimants costs are capped at £5,000 with a reciprocal cap of £35,000 for defendant’s costs. There are problems with this regime despite this protection (e.g. £5,000 will be too much for many), but it only applies to environmental cases which represent a tiny fraction of judicial reviews.
Cost Capping Orders, the statutory successor to Protective Costs Orders, provide a very valuable protection for access to justice. PCOs/CCOs have enabled many cases of wider public importance to be litigated. The very existence of this regime represents a recognition that it is often unreasonable for a person or company to litigate a claim due to the adverse costs risk: a condition for obtaining a CCO is that a litigant would not otherwise pursue their claim and it would be “reasonable” for them not to do so.
CCOs are, however, only available in limited circumstances, of which the most significant limit is that they are only available in cases of wider public importance. There is also no protection for permission stage costs.
Given the rationale for judicial review, there is no proper basis for ameliorating the effective bar on access to the courts’ supervisory function only in cases in which an individual qualifies for legal aid, in environmental claims or in cases of wider public interest. Judicial review exists to protect individuals from abuses of power by public authorities and to ensure that public bodies act according to the law. However, that is an empty protection in the vast majority of cases concerning individuals, and many cases involving SMEs, given the risk of adverse costs.
It is difficult to assess the size of the problem, although it is obviously very great. An attempt by Ravi Low-Beer of the Public Law Project, Professor Sunkin, Varda Bondy and myself to obtain information from the MOJ through FOIA that would identify the proportion of judicial review claims that are legally aided, brought by public bodies or companies, or that benefit from costs caps, has so far not met with any success. The MOJ response has been that it does hold such information but it is too costly to provide it.
Some examples of situations in which judicial review is effectively barred are provided in a submission prepared by Blackstone Chambers for the Senior Judiciary’s consultation on the extension of Fixed Recoverable costs (see paragraph 40). They include the parent of a disabled child who works part time and cannot challenge the decision of the local authority restricting support services; a victim of human trafficking challenging the refusal of local authority emergency accommodation, who has obtained temporary work as a cleaner (and is thus disbarred from legal aid); the SME who cannot challenge its ejection from a tender exercise; and a person who cannot challenge the arbitrary cancellation of their passport.
Such examples serve to emphasise that this is a really serious problem with judicial review that goes to the very heart of the jurisdiction. This problem cannot be dismissed as a matter of mere procedure. In R v IRC ex p. National Federation of Self Employed Business  AC 617 Lord Diplock – perhaps the single most important architect of modern judicial review – stated that it would be “grave lacuna in our system of public law” if a group or single public-spirited taxpayer were “prevented” by procedural rules “from bringing [a] matter to the attention of the court to vindicate the rule of law”. Lord Diplock was there talking about rules on standing, but his remarks are equally apposite to rules on costs.
The Senior Judiciary has just closed the written consultation phase on the extension of a regime of fixed recoverable costs across all low value civil claims (“FRC”) (the consultation is now going on the road). This would fix the costs that can be recovered by a successful claimant or defendant according to a scale of costs. Notably, a fixed costs regime applies to judicial review claims in New Zealand. A fixed costs regime would reduce the recoverable costs in judicial review and would provide much needed certainty for claimants. But whilst it might seem like an attractive, albeit partial, solution, it comes with some serious problems. I mention just two here.
First, it would not adequately address the main issue of unaffordability. A one day judicial review in New Zealand under its scale cost regime is likely still to lead to recoverable adverse costs in excess of $20,000 (Matthew Smith). Secondly, it is extremely important that in cases funded by legal aid or in complex judicial reviews currently subject to a CCO claimants can recover their reasonable costs in full, or litigating such cases will often be uneconomic. It is unlikely that many of the leading public law cases over the past few years would have been litigated had the vast majority of costs of the litigation been irrecoverable.
That is not to say there is no possible role for fixed costs in judicial review, but the current model does not appropriately reflect the issues in this particular area of civil litigation.
What judicial review badly needs is a system of what is known as qualified one-way costs shifting. Such a regime has been introduced following the Jackson report in personal injury cases. The default rule is that defendants cannot recover their cost against unsuccessful claimants. This rule is “qualified” by allowing a sum to be recovered that represents a reasonable amount for a claimant to pay having regard to their ability to pay (it also allows recovery for abusive claims and unreasonable conduct). Jackson LJ recommended that such a regime be applied to judicial review but this was never carried out. The need for such a regime has also been recognised in the context of constitutional litigation in South Africa. Justice Albie Sachs in the Biowatch Trust Case  ZACC 14 explained the reasons. Meritorious cases, he said, would not be brought “for fear of financially ruinous consequences”. Thus:
“If there should be a genuine, non-frivolous challenge to the constitutionality of a law or of state conduct, it is appropriate that the state should bear the costs if the challenge is good, but if it is not, then the losing non-state litigant should be shielded from the costs consequences of failure. In this way responsibility for ensuring that the law and state conduct is constitutional is placed at the correct door.”
For my own part, I would like to see a regime of qualified one-way costs shifting which requires a defendant to apply at an early stage for any qualification to the default rule. Such an application would have to be made and determined at the permission stage so that claimants would know prospectively what their costs exposure would be and could make submissions on the appropriate level. In case brought by a private individual or SME it would be exceptional for any significant amount to be ordered to be payable in the event that a claim, found to be properly arguable, ultimately fails. No doubt principles governing what is reasonable for claimants to pay would quickly emerge. And to ensure that claims are not deterred by permission stage costs, if a claim is rejected at the permission stage costs would only be awarded against a claimant if the claim was identified as being totally without merit (it is not impossible to countenance a variation of such a rule to address heavy commercial judicial reviews). There is no ideal solution. But a regime such as that sketched here would meet the central problem in public law and would be fair overall.
Public law is squarely directed at protecting individuals. Public lawyers, both in court and outside it, debate endlessly the best form of substantive rules to achieve this end. Yet despite the fact that those who work in public law are supposed to be attuned to the importance of substance over form, public law is merrily carried on with very little concern for the fact that for most people judicial review is simply not available. For such people, the glistening array of cutting-edge doctrines that have been developed in UK public law are an irrelevance. This is public law’s disgrace.
But all is not lost. Public law practitioners, academics and judges have proved that ingenuity and determination can produce change. The development of public law is itself testament to this. There are no shortage of centers, units, institutes, associations and pressure groups working within public law that could take up this issue and help to ensure that access to judicial review remains at the top of the agenda. The current consultation on FRC provides an opportunity, at the very least, for public lawyers reflect and engage.
I am grateful to Stephen Clark for the comparative insights and to Ravi Low-Beer for comments. Further analysis can be found in the Blackstone Chambers’ submission on FCR mentioned in the text.
Tom Hickman, Reader in Law UCL and Barrister, Blackstone Chambers
(Suggested citation: T. Hickman, ‘Public Law’s Disgrace’, U.K. Const. L. Blog (9th Feb 2017) (available at https://ukconstitutionallaw.org/))