My Lords, I said a great deal of what I intended to say on Clause 65 when I spoke to the amendment moved by the noble Lord, Lord Beecham, to the clause on Monday. My position, as I explained, is that I regard the requirement for any supporter of an application for judicial review to disclose the extent of his actual or likely financial resources as being contrary to justice and likely to deter or even stifle legitimate applications for judicial review.
I accept that there is a case for ensuring that applicants with means do not hide behind applicants with no means or shell corporations to bring a judicial review application without facing, or being prepared to face, the costs consequences of its failure. However, the provisions proposed by Clauses 65 and 66 are far wider than is necessary simply to limit that practice where it exists. As the noble Lord, Lord Pannick, pointed out, the courts already have ample powers to order costs against non-parties under Section 51 of the Senior Courts Act and under Rule 46.2 of the Civil Procedure Rules. Third parties who support litigation can be ordered to pay the costs of that litigation if they are effectively the real applicants and the applicants on the proceedings are mere nominees. That is just and as it should be. However, I suggest that Clause 66 as it stands—which goes far wider—is unnecessary and, in its mandatory effect, unduly dirigiste.
Noon
Our amendments to Clause 66 in this group, which are Amendments 73N, 73P, 73Q, 73R and 73U, are designed to ensure that the power to order costs against non-parties is considered and exercised only at the appropriate stage. We say that that appropriate stage is the one at which questions of costs are to be considered and determined, at the end of the case. Then it is right that, where an applicant on the paper appears to be a nominee, the court may require to be provided with information as to who really is or has been funding the case, in order to ensure at that stage that an appropriate costs order is made. Of course, that may include information about who is funding a corporation which is of itself unable to meet a costs order.
The court might well then regard it as right, in the exercise of its discretion, to make a costs order against the real funder of an application. However, the sensible way to deal with this is for the courts to be given a discretionary power to require information at that cost stage, and a discretionary power to make an order if, and only if, the court considers it in the interests of justice so to require or so to order. It is not right, we suggest, to impose a compulsory system on the court, which would require the court to consider making a costs order against a non-party who has provided financial support to the application.
I come back to the examples that I gave the other day of a group of parents who fund an application to challenge a school closure order or a group of residents who fund an application to challenge a decision of an authority concerning the village where they live. Some of them will be more wealthy than others, but it is utterly wrong to chill or to deter the wealthier citizens
or wealthier parents from helping to fund an application. The provisions of these two clauses would have a serious chilling effect on applications for judicial review. I regret that I cannot regard them as consistent with the Government’s stated intention not to jeopardise judicial review; they would plainly have that effect.
I see no reason why Parliament should not legislate to clarify the court’s discretion, but that is a world away from introducing a presumption in favour of imposing on any party who provides support for a judicial review application an obligation to provide information about resources or likely resources right at the outset, even before an application is brought, and introducing what amounts to a presumption that he will be liable for the costs of an application if it fails, because that party would therefore not bring the application.