Explanatory note

These Rules amend the Civil Procedure Rules 1998 (“CPR”) (SI 1998/3132), by making provision for the purpose of implementing sections 88 and 89 of the Criminal Justice and Courts Act 2015 (c. 2) (“the 2015 Act”).

Sections 88 to 90 of the 2015 Act create a new type of order called a “costs capping order” (this is separate from costs capping orders in Section 3 of Part 3 of the CPR) to replace protective costs orders in judicial reviews. These orders will limit or remove an applicant’s liability to pay another party’s costs in the High Court or the Court of Appeal, and may only be made if permission for judicial review has been granted.

Rule 5 of these Rules amends the CPR to make provision in respect of the coming into force of sections 88 and 89 of the 2015 Act by inserting new Section VI on judicial review costs capping orders in Part 46. In particular–

– new rule 46.17 makes provision for applications for judicial review costs capping orders and lists the evidence which must be provided in support of an application;

– new rule 46.18 provides that, where the applicant is a body corporate, the court must consider making directions for the provision of information about its members and their ability to provide support for the purposes of proceedings in the circumstances specified; and

– new rule 46.19 makes provision for applications to vary judicial review costs capping orders.

Rule 4 of these Rules makes amendments to rule 3.19 (costs capping orders – general) of the CPR which are consequential on the amendments to Part 46 of the CPR.

Rule 6 of these Rules contains a transitional provision so that the changes made by rules 4 and 5 do not apply to a judicial review application where the claim form was filed before the day on which these Rules come into force.