Judicial Review Costs and Procedures

 

Judicial review is a crucial tool within the legal system that allows individuals to challenge the decisions, actions, or inactions of public bodies, ensuring accountability and adherence to the law. However, pursuing a judicial review can be an expensive endeavour, encompassing various costs that potential claimants must consider. These costs can include court fees, legal representation fees, and other related expenses.

Costs lawyers play a crucial role in managing and mitigating the financial aspects of judicial review, ensuring that clients are well-informed and that costs are handled in a fair and efficient manner. Their expertise is essential in navigating the complex landscape of legal costs, providing clients with the support needed to pursue judicial review with confidence.

At Greener Costs our team of costs lawyers and costs draftsman are highly skilled and have worked on a range of judicial review costs cases.

The judicial review claim procedure

CPR 54 outlines the procedures and requirements for seeking permission to proceed with a claim for judicial review. It includes rules regarding the filing of claim forms, detailed grounds for contesting the claim, and the necessary documents for taking part in the judicial review process.

A claim for judicial review must be filed promptly, as the time limit for filing a claim is no later than three months after the grounds for the claim arose. However, specific cases, such as decisions under planning acts or governed by the Public Contracts Regulations, have different deadlines.

When completing the claim form, the claimant should include details such as the name and address of any interested party, the fact that the claimant is requesting permission to proceed, and any remedy being claimed, including interim remedies​​. It must be served on the defendant and any interested parties within 7 days after the date of issue​​.

Any person served with the claim form, must file an acknowledgment of service within 21 days after service using the relevant practice form. If the person filing it intends to contest the claim, they should provide a summary of grounds for contesting the claim.

Rules for failure to provide acknowledgment of service can be found under CPR 54.9. Failure to file an acknowledgment of service can restrict participation in permission hearings unless the Court allows it. However, such a person can take part in the judicial review hearing if they comply with rule 54.14, which includes filing detailed grounds for contesting the claim and any written evidence within 35 days after service of the order granting permission​​.

If the claimant wishes to rely on additional grounds not originally granted permission, they must obtain the Court’s permission​​. Written evidence can only be relied upon if it has been served according to the rules or court direction, or if the court has given permission​​.

Part 30 transfer applies to the claim, meaning the Court can order the claim to continue as if it had not been started under CPR 54, and give directions about its future management​​. If a person in receipt of a claim form has failed to provide acknowledgement of service, this will be taken into account by the Court when making a decision in regards to legal costs.

What factors are taken into consideration when making a costs order?

 

CPR 54 provides some initial factors which may be taken into account when considering the issue of costs, but the Administrative Court Guide dedicates a full section as to the issue of costs. In considering the factors to be taken into account to make an order for costs in any non-clear cut matters as to which party has been successful, the guide stipulates issues as to conduct of the parties will be considered, including:

“S.25.1.4.1 conduct before as well as during the proceedings, and in particular the extent to which the parties followed the preaction Protocol (see para 6.2 of this Guide);

S.25.1.4.2 whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

S.25.1.4.3 the manner in which a party has pursued or defended their case or a particular allegation or issue; and

S.25.1.4.4 whether a claimant who has succeeded in the claim, in whole or in part, has exaggerated their claim.”

What costs can be claimed in a successful judicial review action?

In the event that the proceedings are considered successful, and an inter-partes costs order is made, then the receiving party can claim judicial review costs in line with normal civil standards. This requires the preparation of a Bill of Costs which will be served with a Notice of Commencement to the Paying Party, in order to commence detailed assessment proceedings. 

Hourly rates can be claimed in line with any private retainer utilised for funding, but in the event of a legally aided funded matter, it is recommended that guideline rates are applied for the area from which the litigation was conducted by the solicitor/legal representative, though enhanced rates can be claimed where appropriately complex circumstances arise, so long as this does not cause any breach of the indemnity principle for any other retainer in place with the claimant.

Can any costs be claimed if a Judicial Review action fails?

Many judicial review cases are funded by way of legal aid. In the event permission is refused to proceed to judicial review, then a claim can be made from the Legal Aid Agency for the legal aid costs incurred following the provision of a funding certificate, up until the date of conclusion. Judicial Review matters always take place in the High Court, and as such elevated legal aid rates apply to reflect this, and enhancement can be claimed up to 100% (as opposed to the regular 50% in the County Court) in appropriately complex matters.

Caution is advised on making a claim from the legal aid fund if the proceedings have been withdrawn without any permission decision having been granted or rejected. In such circumstances, the Legal Aid Agency will not make payment prior to an application for discretionary payment. This involves the completion of a form which is submitted to the LAA, on consideration of which, a decision will be made as to whether costs can be claimed or not. 

Generally, in cases where the proceedings have led to a positive outcome, costs will be permitted to be recovered however, discretion is exercised to discourage the funding of meritless judicial review actions. Be aware that submission of any claim on CCMS for legal aid costs for which no discretion has yet been exercised, will lead to a rejection of your claim for costs, which may impact KPIs on your legal aid contract.

In the event permission on a case is refused, the Claimant needs to be aware that the Defendant may seek their costs of completing the Acknowledgment of Service and defending the proceedings.

How can Greener Costs assist?

At Greener Costs we are able to offer specialist input in relation to judicial review costs. Such matters are often funded by way of legal aid funding, in which case we can assist in the quantification and recovery of your costs. In the event inter-partes costs are awarded, we can assist in the recovery of your costs from the Paying Party.

We are a team of specialist costs draftsman and costs lawyers that have particular expertise in recovering costs in judicial review matters, and we can assist in the quantification of your costs and preparation of any Bill of Costs for assessment. In addition, we can conduct detailed assessment proceedings on your behalf, all the way up to and including any final detailed assessment hearing. If you have a query regarding judicial review costs, please do not hesitate to get in touch by contacting info@greenercosts.co.uk, or by calling us on 01204 263047.

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