Judicial review costs could be capped

1 Aug 17

A senior judge has proposed to make it easier to take public bodies to judicial review by introducing optional limits on the amount of costs a claimant can incur.

Lord Justice Jackson said in his review of costs recovery in legal cases that costs should be capped in judicial reviews of any kind in the same way as are claims for environmental cases.

In the latter, a claimant can opt to have their liability capped at £5,000 and a defendant’s at £35,000.

This system was introduced to conform to the international Aarhus Convention on access to justice for environmental issues.

Jackson said these rules were “in principle suitable for judicial review cases in general, all of which are of constitutional importance.

“Citizens must be able to challenge the executive without facing crushing costs and liabilities if they lose.”

He said it was “tiresome and expensive” for public authorities to face a large number of unmeritorious claims, but “the ready availability of JR proceedings in which public bodies are held to account for their actions and decisions, is a vital part of our democracy”.

The £35,000 costs limit would “will protect the public purse against open-ended liability”, he said.

More complex judicial review cases – those that can last for several days - should become subject to orders budgeting for overall costs to limit the expenses incurred by either side.

Jackson was asked to produce the review by Lord Chief Justice Lord Thomas of Cwmgiedd after his 2010 report led to fixed recoverable costs being imposed for civil claims of up to £25,000 that could be tried in one day, and orders limiting overall costs for larger claims.

He has now proposed an intermediate category of fixed cost cases for claims of up to £100,000 and a bespoke process to limit costs for clinical negligence claims up to £25,000.

Emma Hallinan, director of claims and legal at the Medical Protection Society, said: “From the £1.7bn the NHS paid out on clinical negligence costs in 2016-17, legal costs accounted for 37% of that bill.

“In lower value clinical negligence claims it is not unusual to see lawyers' costs exceed the compensation awarded to claimants, and this is simply not right.”

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