My Lords, this has been a very helpful and well informed debate on the clauses dealing with the provision of information about financial resources and—it is important to distinguish between the two—the use of information about those financial resources.
As noble Lords will be aware, anyone wishing to bring a judicial review must first obtain the permission of the court to proceed. This is set out in Section 31 of the Senior Courts Act 1981 and mirrored in Section 16 of the Tribunals, Courts and Enforcement Act 2007. Clauses 65 and 66 relate to the information that an applicant must provide as part of that application and direct the court to consider that information when making costs orders. In order to ensure that the court is properly informed under Clause 65, the court or Upper Tribunal cannot grant permission to proceed with judicial review unless information on funding is provided. Clause 66 requires that the courts have regard to this information when exercising their existing powers and discretion to award costs.
Amendments 73G, 73H and 73M, taken together, seek to weaken the requirement that an applicant applying to the court or tribunal for permission to bring a judicial review provides information on financial resources. The effect of Amendment 73G would be to enable the courts to disapply that requirement in whole or in part. Nothing is provided about the circumstances under which the court may disapply the requirement. Amendments 73H and 73M seek to remove the requirement for an applicant to supply information about financial resources that are “likely to be available” to fund the claim. There is presently no general requirement for applicants to reveal the source of funding they are receiving for a claim. This may hinder the courts in assessing fairly the available financial resources when making costs orders. Requiring the applicant to provide this information, regardless of whether the funding is provided by a formal party to the claim, will assist the courts in better exercising their existing powers and discretion to apportion costs fairly. Also—and this is worth stressing—in responding
to our recent consultation on judicial review, the senior judiciary welcomed the greater transparency that this would involve, although not the former judges who have participated in this debate.
We are concerned that potential applicants are able to set up shell companies, with the sole purpose of fronting a judicial review, enabling the individuals or bodies driving the claim to avoid full costs implications, ultimately at taxpayers’ expense. Take the challenge to my right honourable friend the Secretary of State for Justice’s decision to grant a licence to exhume human remains which turned out to be those of Richard III; a case referred to in Monday’s debate by the noble Lord, Lord Beecham. A company was formed to bring that judicial review, protecting the sole director from costs liability and an absolute protective costs order was granted, in part on the basis that the company itself did not have any assets. Noble Lords may be aware that the court in this case recently found that the decision of the Secretary of State for Justice was entirely lawful. However, the taxpayer has been left to foot the Secretary of State’s costs, of £82,000 up to March this year, in properly defending his lawful actions. The wider cost to the public purse has been put at £175,000 and may be higher.
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