In July 2015, the Government opened a consultation: Reform of Judicial Review: proposals for the provision and use of financial information (Cm 9117) on financial information to be disclosed by judicial review claimants pursuant to section 85 of the Criminal Justice and Courts Act 2015 (“CJCA”). JUSTICE and the Public Law Project provided a Joint Response on 15 September 2015 and a longer Report in conjunction with the Bingham Centre for the Rule of Law in October 2015. The government published its Response to the consultation on 7 July 2016, in which it proposes that financial information of judicial review claimants (and any third party funders) should be shared with other parties at the same time as the claim form.
JUSTICE believes that the proposals are flawed. The requirement to disclose to defendants and interested parties personal, private information at the very outset of the claim could have a major, unjustified chilling effect on the ability of individuals without means and organisations who take public interest cases to challenge unlawful public decision making. The government has given insufficient weight to the right to access the courts (protected by the common law and Article 6 ECHR) and the right to respect for private life (Article 8 ECHR).
The rationale behind sections 85 and 86 CJCA was merely to increase the information available to the courts to enable them to use their existing powers to make third party costs orders. As JUSTICE and the Public Law Project explained in our Joint Response:
“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.”
Private financial information should only be shared with the court and other parties at the point at which it is necessary. The (limited) purpose of the Parliamentary changes in section 85 CJCA is to assist the court in deciding whether to make a costs order against a third party, so it is only necessary for the court to consider such information (and any representations by other parties) at the stage of considering whether to make a costs order.
Read JUSTICE’s full response here. JUSTICE response to invitation for further views
Read the joint publication between JUSTICE, Public Law Project and the Bingham Centre “Judicial Review and the Rule of Law: An introduction to the Criminal Justice and Courts Act 2015, Part 4” here.