Criminal Justice and Courts Bill

Written evidence submitted by Asda (CJC 16)

Judicial Review   s and the planning system - Part 4, Clauses 50 - 57

About Asda

Founded in the 1960s in Yorkshire, Asda is one of Britain’s leading retailers. It has 172,000 dedicated Asda colleagues serving customers from 572 stores, including 32 Supercentres, 316 Superstores, 33 Asda Living stores, 189 Supermarkets, 2 stand-alone petrol filling stations and has 26 depots and seven recycling centres across the UK. Its main office is in Leeds, Yorkshire and its George clothing division is in Lutterworth, Leicestershire. More than 20 million people shop at Asda stores every week and 98 per cent of UK homes are served by www.ASDA.com. Asda joined Walmart, the world’s number one retailer, in 1999 .

Asda has urged the Government to reform the Judicial Review regime. In November 2012 we published our Barriers to Growth in the Planning System paper, setting out 19 reforms that we believe could streamline the planning system and encourage economic growth. We also wrote to the Secretary of State for Justice in January 2013 proposing reform of the Judicial Review regime, including the introduction of a specialist planning chamber for Judicial Review applications. A revised Barriers to Growth in the Planning System paper, including four recommendations for the Judicial Review regime, was published in December 2013.

Overview

The Criminal Justice and Courts Bill introduces reforms of the Judicial Review regime, which are intended to discourage vexatious applications and streamline the process. If implemented these reforms will ensure Judicial Reviews are not used inappropriately for commercial gain, while protecting access to justice.

In our experience Judicial Reviews have been used to delay planning applications for new stores, often where there is little chance of success and they are subsequently found to be totally without merit. Specific applications made by Asda have been subject to Judicial Reviews and appeals brought by our competitors in locations where they are incumbent and we have little or no presence. This is a long and costly process, often running into hundreds of thousands of pounds for developers and local government, which delays the progress of new developments. We do not believe that Judicial Reviews should be used by our competitors to protect their commercial interests in this way at the expense of local authorities, delaying otherwise sound planning applications and limiting choice for consumers.

If introduced, the proposals contained in the Criminal Justice and Courts Bill will ensure the Judicial Review process does not become a cost effective mechanism for businesses seeking to protect their current market position.

Case studies

We offer three examples of the challenges created by vexatious Judicial Reviews:

· Dundee - Our application for a new store in Dundee was challenged at the outer and inner courts at Court of Session in Scotland and the Supreme Court in England by Competitor A. Competitor A had the highest market share within Dundee. The application was originally approved at committee in January 2010 and was finally approved by the Supreme Court decision in March 2012, a total of 26 months from the original determination. When this store eventually opened, approximately 8,000 people applied for 400 jobs available at the store, highlighting the benefits which could have been brought earlier to Dundee.

· Skelton – The permission obtained by a developer for our store in Skelton, North Yorkshire was the subject of a Judicial Review initiated by Competitor B. The local authority had resolved to grant permission in August 2011 and planning permission was issued in September 2011. A challenge was filed eight weeks later.

· The judge who refused Competitor B permission to proceed found that this was "a hopeless case", and dismissed the claim at the earliest possible stage in the judicial process.

· The challenge was originally made in the London Court, away from the site. The London Court process is more time-consuming that other courts given the volume of cases.

· The court order was not made until March 2012, despite our efforts to progress the process, and the development (and the creation of several hundred jobs) was delayed six months.

· Cinderford - A planning permission achieved in March 2012 by a developer in Cinderford, Gloucestershire for an Asda store development was challenged by Competitor B. This was the third time Competitor B had taken the local authority to the High Court to try to challenge the entry of a competitor in to the town where they have a store. Despite the site being in the Forest of Dean, Competitor  B has again lodged the challenge in the London Court. This challenge was thrown out in November 2012. The Judge held it was filed too late, and had no prospect of success; but it had already delayed development (and the creation of 150-200 jobs) by eight months, and put the developer to the expense of making a duplicate application in case the challenge had been allowed to proceed. Despite the Judge ruling that there was no prospect of success, the objector applied for an oral hearing of their application for permission. This caused still further delay. The case finally reached the High Court in July 2013 - sixteen months after the original decision. The application was re-submitted to the Council to reconsider. We finally received planning permission in October 2013 as the committee considered there are sound planning grounds to approve the application - nineteen months after the original decision. This new permission is now being challenged by Competitor B.

Proposals

In our Barriers to Growth in the Planning System Paper (published November 2012 and revised in December 2013) we put forward the following proposals, many of which are now proposed in the Criminal Justice and Courts Bill, to ensure that Judicial Reviews are not used to delay otherwise sound planning applications, while protecting access to justice:

· Raise the bar for applicants beyond an ‘arguable case’ - Judicial Review applications have only to demonstrate an ‘arguable case’ in order to be granted permission to proceed. This allows vexatious cases - often with little hope of success or based on minor technical issues - to proceed. This incurs costs and delays for the applicant. The bar should be raised to consider whether the case is likely to succeed and if it is in the public interest for the case to proceed.

· Establish a specialist ‘planning chamber’ – We support the introduction of a chamber of specialist QCs to speed up decisions for Judicial Reviews filed in relation to planning applications. This could deliver several benefits: it would speed up the process considerably; free up judges to focus on other cases; deliver a substantial saving to the public purse by enabling many cases to be resolved and dismissed quickly at the permission stage, without the need for full trials; and once it was known that the Permissions would be decided quickly, much of the incentive to delay competitors with vexatious challenges would be lost, reducing the number of cases overall.

· Introduce a ‘no difference’ argument - The Government has also announced proposals to change how courts deal with ‘minor procedural defects’, ensuring that mistakes that have no bearing on the planning decision itself cannot form the grounds of Judicial Reviews. We would welcome the introduction of the 'no difference' argument being considered at the permission stage, enabling courts to reject Judicial Review applications where the alleged defect would have made no difference to the final decision made.

· Enable judges to award damages - The current costs regime for permission applications is much lower than the costs of hearing cases, as incurred by defendants and local councils. Under the current regime commercial objectors can lodge vexatious or speculative Judicial Review challenges to competitor’s permissions in the knowledge that they will only be required to pay a relatively small contribution towards the Defendant’s legal costs (usually between £1,000 - £3,000 plus VAT) if they are unsuccessful. This behaviour could be discouraged if courts were given powers to award up to the full economic costs incurred by the challenge to the Defendant and Interested Party. We propose that the full costs would only be awarded where a Judicial Review was subsequently found to be entirely without merit, ensuring that legitimate challenges are undeterred and access to justice is maintained. The commercial incentives for delaying or preventing a competitor entering a local market are substantial. Therefore, the Judicial Review process risks becoming a cost effective mechanism for businesses seeking to protect their current market position, regardless of the merits of the challenge being put forward. If objectors faced the full costs of their actions most would be discouraged from lodging vexatious claims; reducing the cost to the public purse.

March 2014