Costs News

21 April 2021
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News in brief - 22.04.2021

New issue of Costs Lawyer now live

The March/April 2021 issue of Costs Lawyer magazine is now live here. It includes an interview with the new CLSB chair David Heath and an article from the boss of Frenkel Topping on its ambitions for the costs market, along with features on the guideline hourly rates review, the new rules on witness statements, seeking costs from experts and much more besides.

 

Faulks panel calls for “careful review” of costs in judicial review cases

There needs to be a “careful review” of costs in judicial review (JR) cases, the independent panel of experts advising the government on JR reform said earlier this month.

However, the Ministry of Justice did not address costs in the controversial consultation on JR reform it then issued.

The panel, led by former justice minister Lord Faulks QC, said it had been unable to undertake the empirical research into costs that the Administrative Law Bar Association and Public Law Project had called for, and so did not make any recommendations for reform.

Its report said: “We do note, however, the concerns that have been expressed to us on all sides about the impact of the current costs regime and the costs of conducting judicial review claims, both in terms of discouraging applications for judicial review, and also in the diversion of government funds in having to defend (often successfully) applications for judicial review.”

The panel recorded that campaign group JUSTICE expressed “grave concerns about the current costs regime and its impact on access to justice”, pointing to the “prohibitively high” cost of bringing a judicial review claim (£200,000 for “a substantial two-day hearing”), the lack of legal aid for those with savings or capital over £8,000 (£3,000 in immigration cases) or with a monthly disposable income of £733.

JUSTICE also criticised the costs-capping regime, saying the provision for a reciprocal cap on the defendant’s liability for costs “has a negative impact on the economic viability for practitioners of taking on cases”, as did the fact that an application for a costs-capping order could only be made once permission was granted, leaving claimants and/or practitioners at risk financially until this point.

The Home Office put the cost of a substantive JR hearing at £100,000, and said it spent over £75m in 2019/20 on defending immigration and asylum judicial reviews and associated damages claims, while only recovering £4m of its own costs, “much of which will be written off in future years given the difficulty in recovering debts from those who bring such challenges”.

The panel concluded: “The potentially serious impact of the current costs regime in judicial review cases on access to justice, and the concern of defendants as to the impact of that regime on their functioning – and what might be done about that impact – needs further careful study by a body equipped to carry out the kind of research and evaluation that we have not been able to apply to this question.”

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