Financial-Barriers

Executive summary

In England and Wales, questions of money and finance have become more important in the
discussion around judicial review in recent years. On the claimant side, there are widespread
access to justice concerns relating to the costs of bringing a judicial review. On the
government side, there has been a view taken—which has informed various reforms—that
judicial review is costly to the general taxpayer, and ought to be controlled. Despite the
centrality of this discussion, little systematic research has been undertaken about the
financial barriers to accessing judicial review and their effects. This report provides a high—
level overview of the current debate and what evidence is available at present. It examines
four key areas, providing a snapshot of each:

* court fees and system costs;

* party funding;

* lawyers’ fees; and

* costs between parties and the debate about costs reform.

Examining each of these areas, we find a densely complex system of rules underscored by a
lack of robust evidence to underpin viewpoints. Implicit in almost all views on this subject is
that the present arrangements can and do serve as a barrier to accessing judicial review.
What is contested is the extent to which present arrangements do in fact serve as a
barrier, and the extent to which barriers are justified. While the available evidence suggests
concerns relating to access to justice may be well-founded, there are clear gaps in the
evidence base. The absence of systematic evidence, as well as the absence of serious
modelling of the impact of alternative mechanisms, means that the debate around this
issue is often polarised between, what we label, ”constitutionalist” and ”managerialist”
perspectives. To move beyond this, we suggest there is clear case for a thorough and
even—handed inquiry concerning financial barriers to accessing judicial review. We further
suggest specific questions where further data is required. As such, this report is an ”initial
assessment” of the evidence base which PLP is working towards filling key gaps in.