Leighton, R (On the Application Of) v The Lord Chancellor

This judicial review challenged the Ministry of Justice's treatment of costs protection for County Court discrimination claims, in particular the failure (or alleged decision) not to extend Qualified One-Way Costs-Shifting (QOCS) beyond personal injury litigation following the Post-Implementation Review of Part 2 of LASPO (the Part 2 PIR published 7 February 2019).

The court held that the Part 2 PIR did not record a final decision to exclude discrimination cases from QOCS: ministers and officials were still actively considering the issue and further evidence and possible pilots were required. On the pleaded grounds the judge rejected (1) a Public Sector Equality Duty (PSED) breach because it was premature to require a full equality assessment before an informed decision had been reached; (2) irrationality because it was reasonable to await further evidence and there were arguable policy reasons for differential treatment; and (3) Convention and common-law challenges (Article 6 and the common-law right of access to court and Article 14 read with Article 6) because the existing costs regime and the decision-making process fell within a proportionate balancing of competing legitimate aims arising from LASPO and the CPR changes.

Key statutory and procedural provisions considered included LASPO ss 44-47 (recovery of success fees and ATE premiums), the Civil Procedure Rules provisions on QOCS (CPR rr 44.13-44.16) and the Equality Act 2010 (s149 PSED and the duty to make reasonable adjustments, ss 6 and 29).

Background and nature of the claim. The claimant, a disabled person who had pursued a number of County Court discrimination claims about access to goods and services, sought judicial review of the Lord Chancellor asserting that the Part 2 PIR (7 February 2019) embodied a decision not to extend QOCS to discrimination claims or that, alternatively, the Lord Chancellor had unlawfully failed to extend QOCS. Relief sought was quashing/declaring unlawful any such decision or omission and compelling compliance with legal duties.

Parties and procedure. Permission to apply for judicial review had been granted and the case was heard in the Administrative Court before Mr Justice Cavanagh. Inclusion London intervened with written submissions. The defendant maintained no final decision had been taken and that QOCS extension remained under active consideration.

Issues framed by the court. The court identified (i) whether the Part 2 PIR contained a concluded decision refusing to extend QOCS to discrimination claims, (ii) whether the defendant had failed to take a decision or had unlawfully delayed, and (iii) whether any decision or omission breached (a) the Public Sector Equality Duty (s149 Equality Act 2010), (b) was irrational or procedurally flawed, (c) breached Article 6 ECHR (access to court), (d) breached Article 14 in conjunction with Article 6, or (e) infringed the common-law right of access to the courts (including consideration of Unison and related authority).

Court's reasoning and findings.

• The Part 2 PIR did not amount to a final decision to refuse QOCS for discrimination claims. The PIR recorded concerns and flagged the need for further evidence; the Ministry of Justice had insufficient data and was actively considering possible next steps including consultation and a pilot.
• Because the decision-making process was ongoing, it was not unlawful or procedurally improper for the defendant to have not completed an equality assessment at the PIR publication date. Gathering further evidence formed part of compliant PSED discharge.
• The irrationality challenge failed: it was within rational decision-making to await better evidence and to evaluate countervailing policy considerations (including potential impacts on costs, deterrence of unmeritorious claims and the different funding landscape for personal injury claims).
• Article 6 and the common-law access-to-court argument were rejected applying the proportionality approach adopted in Lawrence/Coventry v Lawrence: the costs and funding regime (when viewed as a package) pursued legitimate objectives and the absence of QOCS for discrimination claims was not disproportionate on available evidence. The Unison decision (fees for employment tribunals) was distinguished by reference to different facts and detailed empirical evidence in that case.
• Article 14 in conjunction with Article 6 was rejected: the applicant failed to show that differential treatment between personal injury and discrimination claimants was unjustified given the differing evidential bases and policy considerations.

Result. The claimant's application was dismissed.

The claim is dismissed. The court concluded that the Part 2 PIR did not record a concluded decision to exclude discrimination claims from QOCS and that the defendant was actively considering the matter; the claimant’s five grounds (PSED breach, irrationality, Article 6 and Article 14/ECHR, and common-law access to court) all failed because the defendant’s conduct and the current costs regime were within the range of lawful, proportionate decision-making.