Review to a kill

Coming soon: a big bust-up between the Government and lawyers following David Cameron’s crowd-pleasing call for a clampdown on judicial reviews

On learning that the Ministry of Justice plans to overhaul the judicial review system, one lawyer quipped last week “there’ll be a judicial review about that”, unintentionally making the MoJ’s case.

Prime Minister David Cameron was preaching to the converted when he told the Confederation of British Industry (CBI) earlier this month that many judicial review (JR) applications were “completely pointless”. One in five, he told the audience, end up being rejected.

Hammering home his point, Cameron went on to say that the time had come for reform.

It is time to “reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting”, he said.

Public sector lawyers universally scoff at the PM’s assertion, responding that the courts already provide several layers of checks before any case is launched in the High Court.

Safeguards first

Geraldine Elliott
Geraldine Elliott

RPC head of commercial litigation Geraldine Elliott speaks for many when she says: “Reducing the scope for raising serious issues with the court is excessive and places a further stranglehold on a process that already has adequate safeguards in place, not least a court-led initial screening process.”

The figures put forward by Cameron, they contend, are skewed and do not reflect the fact that a significant proportion of those cases concerned asylum and immigration matters.

According to the latest MoJ figures released last June, there were 18,811 applications for permission to apply for JRs in 2011, a 12 per cent increase on 2010. Of these, 11,200 were received, 6,391 were refused and 1,220 were granted. Most were asylum and immigration matters.

Furthermore, JRs can only be brought within three months of the decision being made – more quickly than with any other type of case. It can take up to a year for a challenge to be heard by the court, although more urgent matters can be heard in weeks.

Writing for TheLawyer.com, barrister Adam Wagner argued that the JR system suffers from problems because of delays and not because of the framework.

He said: “Of course, one of the best ways to tackle court delays would be to increase funding to the justice system, but that is unlikely to happen given the significant cuts to the MoJ’s budget.”

Challenges

The authorities have faced a number of high-profile JR challenges in recent years. Some have made it to court and, with others, the mere threat of legal action has been enough to derail contracts.

Take the Department for Transport’s (DfT) decision to hand control of the West Coast Main Line to FirstGroup instead of the current contractors, Virgin Rail. Incensed at losing the franchise the company had spent £14m bidding for, Virgin chairman and founder Richard Branson branded the decision “insane”.

It was time to call in the lawyers.

Virgin turned to Herbert Smith partner Nusrat Zar to launch a challenge in the Administrative Court. She in turn instructed JR heavyweight duo Michael Beloff QC of Blackstone Chambers and 11KBW’s Nigel Giffin QC to lead them into battle.

The DfT, meanwhile, turned to Eversheds’ Mark Rhys-Jones and Nicola Williams, who instructed Monckton Chambers’ Michael Bowsher QC to respond.

For a brief spell it looked as though the DfT’s procurement process would be picked over by a court. Then, in early October, the DfT cancelled the contract at a reported cost of £40m for FirstGroup, which continues to retain Burges Salmon – the firm that originally advised on the bid – for litigation purposes. It remains to be seen whether a follow-on case will be launched against the Government.

A year earlier Tottenham Hotspur FC had also turned to Blackstone after the Government decided to hand control of the Olympic Park to rival West Ham United after the Olympics.

Dinah Rose QC was instructed by Olswang partner Dan Tench to lead the fight against the London Borough of Newham, the Olympic Park Legacy Company (OPLC), the Greater London Authority (GLA) and the Government. So hard-fought was the case that seven top-notch silks were put on standby. These included Blackstone’s John Howell QC for Newham, Brick Court’s Richard Gordon QC and Monckton’s Daniel Beard QC for the OPLC and Monckton’s Paul Harris QC for the Government. West Ham, an intervenor, went to David Pannick QC, a Blackstone hotshot.

The lawyer line-up looked like a who’s who in JRs and many were keen to lock horns in court. Alas, the case had only one court outing last August, when Mr Justice Collins gave permission for the JR to go ahead (The Lawyer, 25 August 2011). In October 2011 West Ham dropped its bid for the stadium, and the destiny of the building is now unclear.

Lesson less

The Department for Education has also had its fair share of JR challenges – the prospect of government-driven cuts to budgets is always going to attract them.

The decision by education secretary Michael Gove to halt investment in refurbishing every school in the country in 2011, ruled Mr Justice Holman, was taken without consultation and therefore illegal.

The case embroiled six silks including 11KBW’s Giffin who was instructed by Bevan Brittan partner Emily Heard for claimant Sandwell Metropolitan Borough Council, one of five local authorities challenging the decision.

11KBW also picked up the mandate for the Government, with James Goudie QC leading Clive Sheldon and Robin Hopkins for the secretary of state.

Not long after the dispute Sheldon was awarded silk. This summer he found himself in demand by the Association of School and College Leaders (ASCL), which is planning to launch a JR into the GCSE English marking fiasco.

It is understood that more than 20 local authorities including Manchester, Salford, Leeds, Brighton, Hackney and Lewisham are considering whether to back the claim, which is being led by ASCL.

Immigration

But what of those cases related to immigration?

In July the Supreme Court ruled that immigration restrictions based on jobs and salaries had not been laid before Parliament as they should be and were therefore illegal.

London Metropolitan University will be next to challenge the Government after the Border Agency decided to revoke its licence to sponsor international students. Brick Court’s Richard Gordon QC was successful in applying for the JR application.

Today, the High Court will hear arguments from a group campaigning against the planned high-speed rail link between London and Birmingham. The eight-day challenge is being brought by the HS2 Action Alliance, with SJ Berwin partner Simon Ricketts instructing Landmark Chambers’ David Elvin QC. Landmark’s Tim Mould QC has picked up the mandate to represent the DfT.

As further details emerge about the Government’s plans to clamp down on JRs, some will no doubt be on the hunt for a way to challenge the reforms. There is no doubt that the number of JRs is on the rise, but in taking up the cause, Cameron has set out on another collision course with the public law specialists.