Criminal Justice and Courts Bill

Written evidence submitted by Martin Westgate QC (CJC 17)

Biographical note and summary of position

1. Martin Westgate QC is a barrister practising at Doughty Street Chambers. He was called to the bar in 1985 and became a QC in 2010. He is a member of the executive committee of the Administrative and Constitutional Law Bar Association and has co-ordinated the responses from that organisation to recent consultations on legal aid and judicial review.

2. ALBA is the professional association for practitioners of public law. It exists to further knowledge about constitutional and administrative law amongst its members and to promote the observance of its principles. It is predominantly an association of members of the Bar, but amongst its members are also judges, solicitors, lawyers in public (including Government) service, academics and students. It currently has over 1,000 members, including barristers who act for claimants and defendants in judicial review proceedings and in statutory appeals including in immigration, public procurement and planning cases.

3. ALBA’s position in relation to the changes proposed by the Bill are set out fully in its response to the consultation paper at:

4. Some of the proposals have not been proceeded with in this Act but for those that have the objections raised by ALBA have not been met.

5. The views set out below are those of Martin Westgate in his individual capacity.

Proposals in the Bill:

6. As a general point there is a manifest lack of balance in this Bill. All of the proposals are designed to make it more difficult for challenges to be brought against the government or other public bodies. It is particularly unfortunate that many of the clauses are explicitly directed at challenges or representations made in the public interest by bodies with no individual stake in the outcome. This is behind the proposals relating to interveners, for costs capping orders and financial disclosure. None of the clauses seek to ensure that public bodies do not waste funds defending challenges unnecessarily.

Cl 50 – Likelihood of substantially different treatment

7. There are several substantive components here:

a. On a full hearing the Court must refuse to grant any relief by way of judicial review if it appears to be "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred".

b. In addition the court may not make a damages award [cl 50(1)].

c. On an application for permission for judicial review the court must apply the same test if either the Defendant asks it to do so or it decides to do so of its own motion and it must refuse to grant leave if it appears to be "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred".

8. This approach is wrong in principle, whether the issue is addressed at the permission stage or the final hearing stage. There are 2 aspects to this:

a. Due process is part of the essence of the rule of law and it cannot be dismissed as simply a technical matter if it can be asserted that the final outcome would have been no different. The simple fact is that a public body which fails to follow a fair or lawful procedure breaks the law just as much as it does if it makes a substantive error. The court must have power to exert effective supervision over such breaches and it will not be able to do so if it is forced to focus unduly on the likely eventual outcome. Public bodies will have far less incentive to follow lawful procedures if they can always avoid the consequences by saying that the decision would have been no different. It is worth observing that this section is drafted in such a broad way that it covers any kind of breach, no matter how grave. To take an extreme hypothetical example; what if a public official took a bribe or they acted for reasons of personal spite. Is it really intended that the court should be powerless to act simply because there happened to be underlying reasons that could justify their action?

b. The second point is that the court is ill-equipped in many cases to make a judgment about what the likely outcome will be. This is not simply because the parties have not deployed sufficient evidence but because their constitutional function is different from that of the decision-maker. The courts are concerned to see that legality is observed and they are not primarily concerned with the merits. Once one aspect of the decision making-process is overturned then other parts may be undermined as well. Where the breach consists in a failure to allow consultation or representations one simply cannot predict with accuracy how these would have been received, or would be received if the matter is remitted. as Lord Justice Bingham phrased it: "Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance" (R v Chief Constable of the Thames Valley Police, ex p Cotton [1990] IRLR 344, §352)

9. There are also more practical problems that arise from the way in which this clause is drafted.

a. It prevents the court from granting "any" relief but this would also include a declaration. It is hard to see why the court should be prevented from even stating in formal terms that the Defendant was wrong.

b. Similarly the refusal of any damages cuts across important provisions in the common law and may be incompatible with the ECtHR. For example:

i. A failure to follow due process may mean that a tort has been committed, such as false imprisonment or assault. In some cases damages will be denied if the outcome would be no different and in that sense this clause is not needed but that does not follow in every case. This clause potentially undermines common law rights.

ii. Similarly compensation under the ECHR (which is normally extremely modest) can sometimes be awarded for the loss of an opportunity to participate in a legal process.

10. In practice the courts can and do refuse relief where it is obvious that an error could have made no difference. But this power has to be exercised sparingly if the courts are not to step outside their proper province of legality rather than merits. There is no basis for thinking that the present rules do not work effectively.

11. In any case there are strong practical reasons why this rule, if it is introduced, should not apply, or at the very least should not be mandatory, at the permission stage. This is intended to cover case where the Defendant can establish a "knock out blow" to the application. The MOJ has done nothing to dispel fears that permission hearings will, on this basis, turn into dress rehearsals for the full hearing with a consequent waste of cost and court time.

Cls 51-2 provision of and use of information about financial resources

12. No reason at all is given here as to why a different set of rules should apply in judicial review challenges than apply in other areas of litigation. Nobody would suggest that in commercial litigation that when a limited company brings a claim it must provide information about the means of its shareholders. To do so would interfere with long established principles of company law Prest v Petrodel Resources Ltd and others [2013] UKSC 34. But that seems to be suggested here for all kinds of judicial review. If this provision is to be introduced then it will unfairly discriminate against applicants for judicial review as against other litigants.

13. The requirement will be burdensome and may involve the disclosure of confidential and/or privileged material.

14. The proposal also goes beyond the provision of information and appears to create a presumption that a third party costs order will be made (cl 52(2) and (3)). The rules on such orders are well established and no justification has been given for this change. Cl 52(3) is extraordinarily wide and seems to be intended to have the effect that somebody who is "likely to be able to [provide financial support" could be at the receiving end of a third party costs order. This seems to have no purpose other than to frighten people into not supporting challenges that they might otherwise have sympathy for. It is very likely to be a breach of Articles 10 and 11 of the ECHR (freedom of speech and freedom of association).

Cl 53 – Interveners and costs

15. The present position as regards for interveners is that they neither recover their costs nor have to pay the costs of other parties. This is a symmetrical approach that works well and reflects the fact that interveners assist the court but without necessarily taking the side of any party.

16. This clause is completely one sided. It keeps the rule that interveners do not get their costs but makes them liable for the costs of other parties. Moreover, cl 53(4) seems to have the effect that the losing party can ask for their costs against an intervener. This is wrongheaded and fails to understand the point of an intervention. Interveners do not "choose" to become involved in the way that the parties to the litigation may choose to litigate. They make an application to be heard which is subject to control by the court. The basis on which they make that application is that they have something of value to contribute to the court’s deliberations on the issue that has not been introduced by the parties. They are therefore performing a function in the public interest in assisting the court reach a well informed decision. Indeed the government may itself intervene in proceedings for this reason. Since the whole point of the intervention is to add to the material already before the court it is obvious that this will involve some additional work for the parties. The additional costs so incurred will be in proportion to the value and relevance of the material adduced by the intervener. Given the purpose of interventions it is wrong in principle to make them bear the costs of any such additional work occasioned by their intervention. This clause has the bizarre result that the more helpful and pertinent the intervention the greater the costs that an intervener has to pay.

17. If interveners are guilty of time wasting or have unnecessarily caused costs to be incurred then existing powers are sufficient. Likewise if they have nothing to add then the court will not allow them to intervene. This clause is directed at a non-existent problem.

Cls 54 and 55 - Capping of costs

18. Cost capping orders, or Protective Costs Orders are generally used in cases where a challenge is intended to be brought in the public interest but the person or body that brings the claim requires protection against the risk of an adverse costs order if they lose. They form a valuable function in allowing access to the courts at reasonable cost.

19. These limit the availability of PCOs. The criteria overlap with many of those that are presently used but they are over-rigid. So:

20. Cl 54(3) states that an order cannot be made pre-permission. The costs of permission proceedings can be substantial and there is no reason to limit the power to post-permission cases.

21. cl 54(5) provides that certain types of financial information must be provided. Often it will be sensible for information of this kind to be provided but it is obvious that the regulations could impose excessive and burdensome blanket requirements that not needed in an individual case but will be so disproportionate that they will choke off applications.

22. Cl 54(6) says that an order can only be made if the application will reasonably be withdrawn if it is not made. Again, this is a factor to take into account but there is no reason to make it an absolute rule.

23. Cl 55(2) provides that a costs cap must be reciprocal so that if a claimant succeeds in limiting their exposure to costs they may also be subject to a limit ion what they can recover if they succeed. Again, this may be an appropriate order in some cases but it is wrong to make it a rule. A rule framed in this way is completely counter to the Jackson report on civil justice. He recommended that in certain asymmetrical cases (of which judicial review was one) the general rule should be one of qualified one way cost shifting (QOCS) so that a claimant would recover their costs if they won but would not have to pay if they lost. The government decided not to adopt this proposal except in relation to PI claims This was a lost opportunity to make justice genuinely accessible in other cases at affordable cost. But it is one thing not to implement a proposal recommended by a senior Court of Appeal judge. It is another thing to impose a rule that the courts cannot achieve a QOCS outcome on a case by case basis where it is warranted.

March 2014

Prepared 19th March 2014