JUSTICE provided a response to the Civil Justice Council’s Costs Working Group consultation in October 2022. Our response focussed on pre-action protocol (‘PAP’) correspondence reform and costs capping in judicial review. We emphasised the following general principles:
- That it is important that individuals are not discouraged from sending PAP correspondence, especially when fundamental rights are at stake (such as in judicial review), by excessive costs consequences
- That any system must reflect that many courts users have vulnerabilities and/or will be litigants in person (‘LiP’), for example by providing an accessible alternative to a digital PAP system for those who might be digitally excluded and giving clear information about the potential consequences of the PAP process.
- In Judicial Review claims, there is often a wider public interest and pre-action letters can be an important way of holding the state accountable
- Public authorities should be under a reasonable duty of candour at the pre-action stage, bearing in mind their access to more complete information about an issue, but this should be proportionate and ensure only reasonable costs are incurred
- We do not object in principle to making compliance with PAP correspondence mandatory, with costs consequences for non-compliance, though there should be clear exceptions (for example, when there is an urgent issue that requires immediate court action) and full legal aid funding for the pre-action stage
- When determining costs, the Courts should consider the wider interests of justice, the seriousness of any breaches, the reasons for any non-compliance and the full circumstances of the case. This should include the failure of the public authority to provide a response to reasonable earlier correspondence and leeway for those who are LiP or have vulnerabilities.
- Qualified one-way costs shifting for judicial review claims is worth further consideration, piloting and evaluation.
Having set out these general principles, JUSTICE would emphasise that current practitioners and advice groups are best placed to comment on the specificity of cost proposals in relation to PAP correspondence and the digitisation of the PAP process.