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The judicial review: Is this the end of the road and how will it impact?

APIL lost their JR in the High Court on Friday when both judges, Lord Justice Elias and Mr Justice Cranston, found for the Government and dismissed the application.

APIL challenge process reform

As you may have heard, APIL lost their JR in the High Court on Friday when both judges, Lord Justice Elias and Mr Justice Cranston, found for the Government and dismissed the application.

In their JR, APIL attempted to call the Government processes on portal reform unfair, arguing that it was one-sided, and saying that they ought to have been included within the Prime Minister’s insurance summit in February 2012 when APIL saw the decision to reduce portal costs as having been made. However, the court found on Friday that the Government had already made its decision to reduce fees prior to the summit, and that what the summit was for was to ensure that that would lead to in turn to reduced insurance premiums, which was crucial to its decision making process in this area.

The court accepted within the JR on Friday that the Government could acquire information from whatever source it wanted, that there was no obligation to do so from both sides equally, which would have been impractical, and that within a democracy the remedy was limited to voters making their views clear at the ballot box.

The court also found against APIL on the question of delay in making their application. A JR must be brought promptly and in event within 3 months of the action being complained about. Here APIL were complaining about events going back to February 2012. The court criticised APIL for taking part in subsequent consultations on the portal processes, at the same time keeping this potential JR up their sleeve.

It was reported immediately after the hearing in the press that APIL had requested and been given permission to appeal. There seems to have been some confusion in this area where the entire JR including judgment was disposed of within the day. We attended the JR hearing ourselves and can confirm that APIL neither requested nor were given permission to appeal. Is there going to be an appeal? Neither APIL nor MASS, the other party bringing the JR have yet said  that they intend to appeal, and have instead only spoken of their disappointment at the judgment. They can submit an appellant’s notice to the Court of Appeal within 3 weeks of the decision, by 22nd March, and within that seek permission to appeal from the Court of Appeal. To get permission, they must show that the appeal has a real prospect of success, or there is some other compelling reason why permission to appeal should be given.

Time will tell, but our view is that there must be a good chance that APIL/MASS will choose not to try to take this any further. The way their application was roundly rejected on Friday is likely to be a factor here. Even if they did decide to pursue an appeal, now that the High Court has given this decision, we see it as unlikely that it will be overturned, and that instead we believe that APIL, MASS and their members will continue to have to come to terms with the effect of Government policy in this area, and to make the changes that are needed within the structure of claimant firms to be able to function within the changed processes. What now seems clear is that the changes to the existing RTA portal for claims up to £10k should be expected to happen on 1st May, and those to RTA claims valued at £10-25k, to EL/PL claims valued at up to £25k, and to fixed recoverable costs for claims leaving the portal, should all be expected to come in on 1st August.

For APIL and MASS, there is now another more important challenge ahead in the form of the level of the small claims track limit. As you know the current consultation to consider raising the SCT limit for whiplash or for all motor claims is open until 8 March, this Friday, but that the Minister also spoke last month of the fact that in now response to the unsuccessful JR, he was considering raising the SCT for personal injury claims generally to £15k. In our view, this will now be the key area of future policy consideration in the months ahead. We will keep you informed.

For further information please contact Simon Denyer, Partner on 0161 604 1551 or email simon.denyer@dwf.co.uk

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.