New Zealand: Reform of judicial review receives Royal Assent in the UK

After prolonged political wrangling, reforms to judicial review in the UK were enacted mid-February. The changes are claimed by the British Government to be aimed at reducing the burden of vexatious judicial review applications on the public service.

Judicial review involves the court reviewing the decisions and actions of public bodies and those exercising public functions.

The Criminal Justice and Courts Act 2015 (the Act) passed on 15 February 2015. The UK government justified the changes in the Act on the argument that judicial review proceedings had become a promotional tool for countless left-wing campaigners and served only as a legal delaying tactic against legitimate public decisions. The amendments sought to make it more difficult to bring a claim and introduce new mechanisms to determine who should pay the costs of the proceedings.

Although the changes were modified considerably during the parliamentary process, they still impose significant restrictions.

Benefit to applicant must be proven

The new Act requires the Court, before accepting a judicial review, to consider whether the outcome for the applicant would have been different if the alleged defect in the decision-making process had not occurred. If it is highly likely that the outcome would not have been substantially different then the Court must reject the judicial review application unless there are reasons of exceptional public interest.

Prior to the Act, the benefit to the applicant was an issue that the Court could consider, but was not mandatory.

The change means that the applicant must show in all cases that it has a real interest in the decision being challenged. The purpose is to avoid the costs of judicial review proceedings when the alleged unlawfulness makes no real difference to the applicant.

Opponents argued that judicial review is not only concerned with the narrow interests of the individual claimant, but also the wider public interest in improving public decision-making. This is certainly true, and the change could have an undesirable side-effect, depending on the way the exceptional public interest test is applied.

Disclosure of how the case is financed

The Act introduces two new requirements concerning the financing of judicial review. First, applicants must disclose information on the financing of their judicial review claims (above a certain, yet to be defined, level). The information must include information on the source, nature and extent of financial resources available or likely to be available, to meet potential liabilities if the claim is lost. The source of funding must include any third parties who provide funding.

Second, if a judicial review claim is lost, the Court must consider awarding costs against any third person or organisation providing financial support to the applicant.

The claimed rationale behind these changes is the fairer sharing of the costs of litigation. The UK government was worried about claimants who otherwise could not afford to pay costs being funded by interest groups or other similar third parties in order to ensure that a case gets to court. If the claimant lost, the third parties, who had not actually joined the case, would not bear any liability for costs. As the claimant, in such cases, was usually impecunious, the result was that no costs awards were made. The government claimed that this was unfair, as it meant that the costs were instead falling on the public purse.

Even if the UK government's rationales are correct, however, the changes will capture parties who have funded litigation pure of motive, for example, a pro bono volunteer lawyer or a sympathetic family member.

Changes for Interveners

The Act establishes a presumption that third party interveners will be unable to recover their costs, even if successful. The Act has also made interveners liable, in certain circumstances, for costs incurred by other parties to the proceedings as a result of the intervention (often the public body defendant).

Interveners are usually parties who are not directly affected, but join a case to represent particular issues. Interveners are often charitable not-for-profit organisations, NGOs or other single issue groups who are interested in the issues being considered in a judicial review case and will seek permission from the court to file evidence or make representations.

A likely consequence, and an intended effect, of this change is to discourage interveners from joining judicial review proceedings in the UK. This is unfortunate, as these types of intervener can provide useful contributions to the courts' consideration of a particular legal problem but the UK government wanted to prevent interveners from using judicial review as a political platform.

Protective cost orders

The Act also alters the common law position on protective cost orders (PCO) (referred to as "cost capping orders" in the Act), which remove or limit a party's liability to pay another party's cost in judicial review proceedings. PCOs provide certainty as to costs for judicial review applicants, who otherwise may not apply for judicial review due to the potential cost. The Act has limited the scope for PCOs by allowing a Court to make a PCO only if:

  • Permission for judicial review has already been granted,
  • The proceedings are in the public interest;
  • In the absence of the order, the applicant would withdraw the judicial review application; and
  • It would be reasonable for the application to do so.

Similar changes needed in New Zealand?

A question that may come up is whether similar reforms are needed in New Zealand. The recent high-profile judicial review decisions involving parents challenging disciplinary decisions made by their children's school has stirred public debate around the appropriate use of judicial review.

That case, however, is quite different from the kinds of cases that led to the UK government wanting to reform judicial review processes. Even if the UK government's reasons for making the changes are accepted, it does not appear that judicial review has been used to oppose government action in a similar way in New Zealand.

The only recent case that comes close is the New Zealand Maori Council's review of the Government's decision to sell 49% of the shares in Mighty River Power. Although the NZMC lost in both the High Court and the Supreme Court, it successfully won recognition that the proposed sale of shares was reviewable for consistency with Treaty principles. This point was recognised as so important by the Supreme Court that it did not even award costs against NZMC. In no way could it be seen as a vexatious case

The case is also quite different from the UK situations in that NZMC was not an intervener, but the principal party, and the Courts were able to hear the case quickly, avoiding major delay to the Government's share programme.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Nick Crang
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions