Criminal Justice and Courts Bill

Supplementary written evidence submitted by the Bar Council (CJC 37)

In response to an invitation by Guy Opperman MP on Clause 54(2) and (3)

1. The General Council of the Bar of England and Wales (the Bar Council) welcomes the opportunity to respond to Mr. Opperman’s question, posed to Nicholas Lavender QC at the Committee’s Second Sitting on 11 March 2014:

"May I ask for your written submissions on subsections (2) and (3) of clause 54, specifically on

whether the court can give a protective cost order or a cost capping order for an application for permission, and whether that would discourage potential applicants from making the application for permission, if they knew that they were going to be successful and get an application for a cost capping order at the end of the day? I would be interested in your views on that, especially in the light of Corner House and of Compton v. Wiltshire Primary Care Trust ." (Report, Col. 92)

2. Subsection (2) defines a "costs capping order" as limiting or removing a party’s costs liability "in connection with any stage of the proceedings." The permission application is a "stage" for this purpose: see subs. (12)(a). But subs. (3) prevents the court from making a costs capping order unless and until it grants permission.

3. That clash between subss. (2) and (3) is curious from a drafting point of view. But more importantly, if enacted in this form the Clause would emasculate the judge-made practice, developed in cases such as Corner House and Compton, of granting costs protection in respect of the permission stage. That is a matter of great concern from an access to justice standpoint.

4. It is well known that judicial review proceedings are highly "front-loaded". When commencing judicial review proceedings, a claimant is required to assemble all the documents relied on in support of the claim. The basis of the claim must be set out in a detailed statement of facts and grounds and, in most cases, one or more comprehensive witness statements. The effect of the permission requirement is that the claimant cannot cut corners: the case must be put forward on a fully reasoned basis, with all factual and legal propositions set out in much the same form as they will be argued at the eventual substantive hearing. In addition, the claimant owes a duty of candour (remaining from the pre-CPR days when the leave stage was dealt with ex parte), requiring him or her to acquaint the court with relevant material unhelpful to his or her case.

5. This is, incidentally, one of the reasons why the Bar Council is so concerned – as explained to the Committee – at the Government’s accompanying proposals to require practitioners who undertake claimant legal aid cases to act "at risk" at the permission stage.

6. For present purposes, the important point is that the permission stage is an on-notice, contentious process. Just as the claimant incurs a greater proportion of its overall costs early in the proceedings than in ordinary civil cases, so too does the defendant. While defendant public authorities are encouraged to respond in economical terms (Davey v Aylesbury Vale DC [2008] 1 W.L.R. 878, C.A.), not surprisingly -- given the comprehensive nature of the material the claimant is required to submit -- the defendant will often respond at considerable length. Frequently, the response not only addresses the merits but adds new material to advance a discrete objection such as delay or lack of standing.

7. CPR Part 54 entitles the defendant to claim its costs of responding to the claim (including its costs of the pre-action protocol process) where permission is refused on the papers. The court will summarily assess those costs and order the claimant to pay them. Even in a straightforward case it is unusual for defendants to claim less than around £5,000 at that stage. In a case of any substance, novelty or complexity, the claimed costs are likely to be much higher – claims for £15,000-£20,000 are not unusual, and the amounts can be greater still.

8. It was against this background that the Court of Appeal in Corner House gave procedural guidance encouraging claimants to apply for a PCO on the papers at the earliest possible stage, generally before the court considers permission, so that the costs cap is in place before the defendant incurs significant costs. The court recognised, in other words, that exposure to uncertain costs liability at the permission stage itself has the potential to act as a significant deterrent to commencing proceedings at all.

9. Thus for costs capping orders to work effectively, and to create the early certainty that lies at the heart of their operation, it is essential that they should be available early on in the case. This assists defendants, because the procedural guidance given in Corner House subjects claimants to the discipline of including an application for a PCO in the papers at the start of the case, so that defendants are not surprised by a PCO application at a time when substantial costs have already been incurred.

10. Two features of the Government’s reform proposals significantly amplify the claimant’s costs risk at the permission stage. First, the proposal to alter the provision currently appearing at paragraph 8.6 of Practice Direction 54A, namely that where a permission hearing takes place (ie. where either the claimant seeks review of a paper refusal, or the court adjourns the permission application to a hearing), "the court will not generally make an order for costs against the claimant." At paragraph 47 of its February 2014 paper, "Judicial Review – proposals for further reform: the Government response", the Government announced that it would reverse this general rule. Second, Clause 53, if enacted, is likely to result in greater emphasis at the permission stage on the "counterfactual" of what would have happened if the alleged error of law had not been made. That means a resulting increase in the volume of evidence, and therefore in the level of costs, at the permission stage. Those proposals make the importance of costs certainty at the permission stage more, not less important.

11. The Bar Council therefore respectfully urges the Committee to reject Clause 54 in its present form.

March 2014

Prepared 2nd April 2014