Certainty at all Costs? A Critical Analysis of the Proposed Introduction of Fixed Recoverable Costs in Immigration Judicial Reviews

Abstract

1. It is axiomatic that costs rules in civil litigation can anddo shape access to legal processes. Indeed, when costs rules are being drafted this idea – the ‘deterrence effect’ – is often a rationale for drafting rules in a certain way. The costs rules in judicial review have been a particularly vexed subject in recent years. There is a widespread view that the current cost rules are a contributing factor to an access crisis in this part of the justice system, although the Government certainly does not share this outlook. Rather, it is more concerned that public money is too often being spent on public bodies defending weak cases that get in the way of efficient public administration. This tension is placed under further strain by both the constitutional position of the judicial review process (supporting claims that access to this process is of particular systemic importance visà-vis the constitutional right of access to justice) and the persistent issue of a lack of robust and comprehensive data on costs against which policy claims can be tested.