As promised yesterday, the government today launched a consultation on payment for judicial review cases. Part of a wider consultation on limiting the scope of JR, it is proposed that payment of solicitor and counsel fees would be conditional on permission being granted, as was originally suggested. However, in addition to that, there would be a discretionary power for the LAA to pay in cases that do not reach the permission stage. This applies both to work done in the High Court, and in the Upper Tribunal’s exercise of its judicial review jurisdiction.
Disbursements, court fees and work done in connection with interim relief would always be paid, and the client would always have costs protection. However, solicitors and counsel would only be paid, in cases that do not reach the permission stage, if the LAA exercises its discretion. In doing so, it will look at the case in the round and in particular apply the following criteria:
- why a costs order or agreement was not obtained as part of the settlement, including consideration of pre-action conduct [the expectation being that providers should generally seek costs from the defendant not the LAA if they “win” and should not be paid if they “lose”];
- the extent to which the client obtained the remedy sought;
- the reason why the client obtained the remedy sought [intended to prevent payment being made where a decision is overturned for a reason unrelated to the claimant’s claim];
- the likelihood, considered at the point of settlement, of permission having been granted had the case progressed that far, taking into account the strength of the case and (if applicable) any specific indication given by the Court.
The discretion will apply to any work not covered; so if a partial costs order is made, an application for payment for the remaining costs could be made. A full application, addressing the criteria, will need to be made to the LAA. There will be a right of review. This is a separate and independent decision to the actual costs assessment. No indication is given in the paper as to whether making the application would be chargeable work to be included in the bill (if successful). If there are to be two separate applications – for permission to submit a bill, and for assessment, that will add delay to the payment process. If only one, that means that the costs of drawing up the bill will also be at risk.
On an initial view, this appears to require the LAA to make a carefully balanced assessment of the merits of a case, the conduct of the parties, and the wider factual and legal circumstances. It is not all clear that it is equipped to carry out this sort of quasi-judicial exercise.
The consultation closes on 1st November, and you can respond here.