Criminal Justice and Courts Bill

Written evidence from the Law Society of England and Wales (CJC 14)

1. The Law Society of England and Wales is the independent professional body, established for solicitors in 1825, that works globally to support and represent its 166,000 members, promoting the highest professional standards and the rule of law.

2. The evidence contained in this briefing has been agreed by the Society’s Administration of Justice Committee, which is made up of senior and specialist lawyers practising in this field.

3. The Society’s comments on the Bill are as follows:

Part 3, Clause 29 - Criminal courts change

4. Purpose of Clause: Clause 29 shows the Government’s recognition that charging guilty defendants an amount towards the costs of their criminal case is a legitimate means to raise additional revenue to suppor t the criminal justice system.

5. The Law Society's position: The Society welcomes Clause 29.

6. For many years, there have been calls on the Government to introduce such a charge to support the legal aid fund. The Society would invite it to treat the funds raised by the new Charge as a legal aid levy dedicated to fund this vital service, in light of the significant cuts to legal aid that already have occurred as well as the huge reductions it is now proposed to make under the Transforming Criminal Legal Aid programme.

Part 3, Clause 32-35 – Appeals in civil proceedings

7. Purpose of clause: Clauses 32-35 will extend the scope for civil and administrative cases involving points of law of major national importance to leapfrog to the Supreme Court without being heard in the Court of Appeal.

8. These provisions are dependent on the Supreme Court granting permission to appeal and are likely to be used infrequently.

9. The Law Society's position: The Society supports this proposal.

Part 3, Clause 36 - Costs in civil proceedings

10. Purpose of clause: Clause 36 places a duty on a court making a wasted costs order to consider whether to notify the lawyer’s professional regulator and/or the Legal Aid Agency.

11. The Law Society's position: The Society considers clause 36 to be unnecessary.

12. The court already has the discretion to make a lawyer personally liable to pay any litigation costs which are caused by his or her improper, unreasonable or negligent conduct. The additional sanction is superfluous. The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor. The existing liability to a financial penalty is sufficient sanction.

Part 4, Clauses 50, 51 & 52 - Judicial review in the High Court and Upper Tribunal

13. Purpose of Clause: Clause 50 will extend the court’s discretion to consider the likelihood of whether there would have been a substantially different outcome for the applicant if the decision challenged had been arrived at properly. The application will still be reviewed against this higher threshold by the judge considering whether to grant permission for a judicial review challenge to be heard.

14. Background: The Society was concerned about the Government’s intention to undermine the right of individual members of the public to challenge the legality and reasonableness of the decisions of public bodies. The Ministry of Justice consultation 'Judicial review – proposals for further reform' contained two areas of concern. The Government proposal to alter the test for standing for judicial review, requiring an applicant to have a direct personal interest in the matter. Secondly, it proposed to restrict the payment of legal aid in judicial review cases to those which obtain the permission of the court to be heard. This means that a lawyer would be running the risk of receiving no payment for all preparatory work, which may reduce the number of lawyers willing to take on judicial review cases, therefore reducing the citizen’s access to justice.

15. The Law Society is pleased that the Government has been dissuaded from narrowing standing. However, it has announced that it will bring forward secondary legislation to impose "at risk" funding for judicial review permission applications.

16. The Law Society's position: The Society does not support Clause 50 because it believes that this clause will not prevent the mischief that concerns the Government and will simply lead to greater complexity at earlier hearings.

17. Clause 50 would mean that an application for judicial review would not proceed to be heard if it is highly likely that the outcome for the applicant would not have been different if the decision-making authority had got the process right – as the same decision would be made regardless of a faulty decision-making process.

18. The Society considers that:

a) In practical terms, courts will need to determine this issue in any case and so the preliminary hearing is likely to become a full assessment of the case and will save little time or money.

b) In practice it may be very difficult to decide whether or not the same decision would have been made. Procedures exist to ensure that authorities consider all the evidence and it will often not be clear whether, in fact, the same decision would have been taken if all the procedures had been followed.

c) there will be satellite litigation over what "highly likely" means which is likely to add costs and uncertainty.

19. While the Society agrees that it is desirable to limit the number of hopeless JRs, it is not clear to us that there are a significant number of these and, in any case, the courts have ample powers to deal with these at the permission stage. In addition, the Society believes there are already numerous hurdles before judicial review applications are accepted and so any additional measures are unnecessary.

20. The purpose of clauses 51 and 52 is to enable the court to make costs orders against third parties who are thought to be behind particular applications. While the Law Society recognises that it is undesirable for impecunious individuals to be used as "front" for groups who could well afford to take the risks, we share the views of the Bar Council about the implications of the very wide remit of the clauses and believe that it is essential that (a) there should be at least a discretion in the court to waive the requirements to provide information in appropriate cases and (b) to limit the liability of any third party to cases where there is (i) evidence that the third parties have a direct interest in the matter and (ii) are actually supporting the claimant financially.

Part 4, Clause 53 - Interveners and costs

21. Purpose of Clause: Clause 53 would require interveners to meet not only their own costs but also any costs incurred by other parties resulting from the intervention.

22. The Law Society's position: The Society seeks the deletion of Clause 53.

23. Interventions are not frequent and require the permission of the court. Interveners are restricted both in the quantity of materials they can submit to the court and in the time they are allowed to present arguments before the court. At present interveners normally meet their own legal costs.

24. Interveners perform a useful function. The intervention of the third party may be on a point of significant public interest: they may provide evidence or legal argument not otherwise available to the court. If the court decides that it is appropriate for interveners to be heard then it follows that they are likely to add something of value to the case and there is no reason why they should bear the costs of other parties.

Part 4, Clauses 54-56 - Capping of costs

25. Purpose of Clauses: Clauses 54 & 55 propose restricting the availability of Protective Costs Orders (PCOs). Clause 56 excludes environmental law cases from the proposed cap on PCOs in the preceding clauses.

26. The Law Society's position: The Society opposes clauses 54 & 55 and welcomes clause 56.

27. Background: PCOs are relatively new in England and Wales. They have been developed by the courts in order to create a level playing field between claimants and defendants in public law cases. Before a case is heard, the court sets a maximum figure for the costs which the applicant will be required to pay should their case not succeed. They are only available where the case raises serious issues which may affect the public generally and there are no signs of abuse nor over-reliance.

28. PCOs are serving the purpose for which they were intended - to enable ordinary people to have the certainty that in the event of being unsuccessful, they will not be confronted by substantial costs against them by the court. Any constraint on the availability of PCOs will have the effect of deterring claims which it is in the public interest to be heard.

29. According to the Impact Assessment, between January 2010 and August 2013, there have been 17 judicial review cases involving PCOs. As a signatory to the Aarhus Convention, the UK is committed to providing access to justice at reasonable cost in environmental cases and PCOs have met that obligation. Only three of those 17 PCOs related to non-environmental cases. Restricting availability of PCOs, so that unsuccessful applicants will have to bear the full costs of the public body which they are challenging, will not save much for the public purse.

Part 4, Clause 57 - Planning proceedings

30. Purpose of Clause: Clause 57 will introduce a permission filter for legal challenges to planning decisions and orders brought under section 288 of the Town & Country Planning Act 1990.

31. There is already a permission filter for appeals against enforcement action under section 289 of the same Act.

32. The Law Society's position: The Society supports Clause 57.

33. The Law Society welcomes the announcement of the Government’s intention to institute a Planning Court within the High Court this year which will be able to fast track planning cases before a cadre of specialist judges. The Planning Fast Track has already contributed to a reduction in the length of time taken for a planning case to be heard. The Planning Court will make further progress to ensure that legal challenges to necessary developments are dealt with in a more reasonable timescale.

March 2014