JUSTICE and the Public Law Project (“PLP”) prepared a joint response to the Government’s recent consultation on the compulsory disclosure of financial information by claimants for judicial review and applicants for costs protection, pursuant to the Criminal Justice and Courts Act 2015.
This consultation concerns the approach to rules of court that may be made under part 4 of the Criminal Justice and Courts Act 2015. The subject matter of the proposed rules relates to:
a) the provision of financial information required of all judicial review claimants before permission to apply for judicial review can be granted, pursuant to sections 85 and 86(2); and
b) the provision of financial information required to be included in applications for costs capping orders, pursuant to section 88(5).
These two aspects of the consultation raise similar issues about interference with claimants’ rights to privacy, a fair hearing, and access to the court, which are explained below. However, the rationale behind each aspect is different, and therefore the justification for each must be considered separately.
The Consultation Document proposes that disclosure, including in respect of third party information, will be by way of a statement of truth by the claimant in any proposed judicial review.
The application of these measures in a manner consistent with the fundamental common law right of access to justice and the constitutional function of judicial review, the right to a fair hearing and the right to respect for private life guaranteed by Articles 6 and 8 ECHR (and the Human Rights Act 1998) will be important to ensure that these measures do not operate as a disproportionate deterrent to claimants seeking to challenge the unlawful behaviour of public authorities.
Measures designed to improve recovery of costs should not ultimately be used to limit access to judicial review only to those with substantial independent means by deterring others from pursuing litigation even where their claims are strong.
As access to legal aid is restricted and the CJCA 2015 introduces new limits on costs protection, it is likely that individuals and groups without significant funds will explore other avenues of support for litigation, including for public interest litigation. If the mechanism for the handling of information in connection with the recovery of costs, including against third parties, is overly broad or unclear, these avenues are likely to be similarly constrained. As explained below, we are particularly concerned that these new disclosure requirements may have an unjustified and unintended chilling effect on the funding of charities and not for profit organisations who conduct litigation and their ability to bring public interest cases in practice.
In this Consultation Response, JUSTICE and PLP provide their analysis of the new financial disclosure provisions in Section 85 and 88, which we hope may assist the Government and the relevant Rules Committees.