Wednesday, 5 February 2014

Changes to High Court challenges

As predicted in The Times yesterday, the Criminal Justice and Courts Bill has been published today. I have not yet had time to look at the Bill in any detail, but one change that I noticed immediately is contained in Clause 57, whereby it will be necessary in future to apply for the permission (‘leave’) of the Court before an application under section 288 can be brought before the court.

This will bring section 288 cases (relating to appeal decisions under section 78 in respect of the refusal of planning permission) into line with section 289, where permission has long since been required to appeal to the High Court against decisions in enforcement notice appeals under section 174, and with claims for judicial review brought under CPR Part 54. Thus all these procedures will now be brought into line so far as the need for leave is concerned. This change was foreshadowed in last year’s consultation paper on judicial review, although I am not at all convinced that this change was necessary.

The existing six-week time limit for launching a High Court application under section 288 will apply in future to the time for making the leave application.

It will take several months for the Bill to make its way through parliament, and it will be brought into force by a commencement order (or orders), so this and other changes that the Bill will introduce will not come into effect until nearer the end of the year, maybe even next year. In the meantime, section 288 claims can continue to be launched in the High Court as of right, without the need for leave.

Other clauses in the Bill make further changes to Judicial Review, as proposed in last year’s consultation paper. These include limitations on the extent to which protective costs orders (costs capping orders) can be made in future, provisions for the ‘leap-frogging’ of appeals from the High Court in certain cases to the Supreme Court (by-passing the Court of Appeal) and codifying the court’s discretion as to whether or not to grant relief in cases where no different outcome is likely to be achieved if the decision under challenge were to be quashed. This will no longer be a matter of discretion as such; instead, the court will be required to dismiss a challenge where the court considers the conduct complained about would be likely not to have resulted in a substantially different outcome for the applicant.

Unless I have missed something, this Bill does not contain the promised legislation to set up a fast-track specialist planning court (as part of the Upper Tribunal), but I am not aware of this proposal having been abandoned by the government, and so this may perhaps be dealt with by some other route. No doubt all will become clear shortly.


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