Judicial review is a core constitutional mechanism through which individuals and organisations can ensure that public bodies follow the law. It allows the independent judiciary to decide whether the actions and omissions of public bodies comply with the laws passed by Parliament and the standards established by the courts themselves. When the decisions of public bodies go wrong, judicial review ensures procedural fairness, secures human rights, and requires that officials act within their powers.  

Judicial review is the rule of law in action. 

But the rule of law costs money. And there are serious questions about whether the rules governing costs in judicial review properly facilitate its crucial purpose. By “costs”, we refer to the rules governing liability for, and recovery of, solicitors’ fees and disbursements such as counsel’s, expert, or court fees – not including access to or eligibility for legal aid. 

Are the rules on costs ‘fit for purpose’?

From PLP’s experience of judicial review proceedings, and from hearing the experiences of others, we know that:  

  • If a case is settled by the parties before the claim is issued, parties cannot claim costs from their opponent, even if the case settles in their favour. When PLP’s research indicates that over half of claims are settled pre-issue, this means that parties have no mandatory route to secure their costs in most public law disputes. 
  • If a claimant is refused permission to bring a judicial review, they are liable for the defendant’s costs, as well as the costs of other defendants and interested parties. We want to investigate whether this is a proportionate allocation of costs given the need to facilitate the issuing of arguable claims. 
  • Defendants are increasingly demanding large sums based on commercial rates for work done pre-permission. For example, we have heard some public bodies demanding up to £40,000 for pre-action work (such as Acknowledgement of Service and Summary Grounds), when only several years ago this would have amounted to a few hundred pounds. We want to examine why this is happening and whether this practice should be changed. 

This is why the Public Law Project is launching a research project looking into the costs regime in judicial review and how it should be reformed to better facilitate access to justice and the rule of law. This could include legislative reform alongside changes to guidance, culture, or practice.  

To ensure that we base our recommendations on the best possible evidence, we want to hear the full range of experiences and opinions. This includes legal practitioners as well as individuals and organisations who have been involved in judicial review either as claimant, defendant, or intervener. This will help us understand how the current system is working and views on how it might be changed. This will be done through a research questionnaire and research interviews.  

Share your insights

If you are a legal practitioner, please share your insights by completing our research questionnaire which is available here. We would value your insights and opinions. If you are a legal practitioner and would like further details or to participate in an interview, please contact PLP’s Senior Research Fellow, Lee Marsons, who will be leading this project. 

If you are not a legal practitioner and have experiences related to costs in judicial review as claimant, defendant, or intervener, please also get in touch. We may be able to highlight your experiences as case studies in the research. Please take a look at the details on the questionnaire here.

Ultimately, PLP will advocate for a better system that is fair – and seen to be fair – for all parties, that better facilitates the purpose of judicial review, as well as being workable in practice.