Third-party interveners in judicial reviews

It is well known that judicial review claims can raise far wider issues of public interest that go beyond those that concern the parties directly involved. For example, many judicial review cases affect disadvantaged, vulnerable or marginalised groups whose interests are represented by charities, NGOs and other voluntary sector organisations. It is often the case that such organisations, such as the Public Law Project and Liberty, have their own research teams and body of evidence to hand. It is through third party interventions that an organisation not directly affected by the issues involved may submit specialist information or expertise to the court. There have been occasions when a crucial argument has been submitted to the court by an intervener that neither of the parties directly involved articulated. Depending on the issue, sometimes the relevant Secretary of State will intervene too.

This article will provide a brief overview of how an organisation can go about intervening as a third party in judicial review proceedings, the considerations that need to be dealt with, the implications of the reforms proposed in the Criminal Justice and Courts Bill. and also provide some examples of interventions in reported cases,

How to intervene: the Procedure

The first step to take before making an application for intervention is to write to the parties to the litigation and seek their consent. It must be made clear why the intervention is necessary and an agreement should be sought as to costs. As many interveners are charities and NGOs, most solicitors and barristers will be willing to represent such an organisation for free, or a greatly reduced fee. However it is strongly advised that the interveners seek the agreement of the parties that there should be no order as to costs for interveners. In other words, interveners must pay for themselves to appear, and in return and if agreed, will not be liable to costs incurred by the parties involved as a result of the interventions.

The responses of the parties to this first step should be included in the application for permission to intervene. An application for permission to intervene should be made as soon as possible, it is good practice to prepare a draft order with a timetable for filing their documents; this is to ensure that the intervention will not prevent the hearing from running smoothly, and that the interveners will not disrupt the schedule of the court.

With regards to serving documents and submissions, Moses LJ said in R (HC) v Secretary of State for the Home Department and the Commissioner of Police of the Metropolis [2013] EWHC (Admin) 982 that an intervention needs to be served “at a time when the defendants could properly respond the claimant decide which of the arguments within those interventions he wished to deploy”. In other words, any written submissions from interveners should not be sent to the court at the same time as the defendant’s response.

Factors Interveners should consider:

On a practical level, the first thing for any potential intervener to consider is the likelihood of obtaining permission from the parties to intervene. This will depend greatly on whether or not the intervener has something to contribute that has not already been said by the parties directly involved. An intervention is of no use if it repeats points made by someone else. This was very much the message of Lord Hoffman’s judgment in Re E [2008] UKHL 66. Costs and fees are another key consideration. As discussed above, the intervener needs to make every effort to keep costs to themselves and to others to a minimum. However, applying for permission to intervene at any level requires the intervener to pay a fee. This can sometimes be waived at the discretion of the court.

Thirdly, if evidence is to be provided to the court, permission to do so needs to be applied for when making an application for permission to intervene. This is in addition to a request for permission to make written and/or oral submissions. Interveners need to decide whether they want to apply to provide written submissions alone, or whether they wan the time to make oral submissions at the hearing itself. Written submissions, it could be argued, are more likely to be ignored, however there is little evidence in support of this. For example, Mind’s written submissions in SL (FC) v Westminster City Council [2013] UKSC 27 were referred to explicitly in the Supreme Court’s judgement. In any case, counsel for any intervening parties are not likely to be given much longer than an hour at a hearing to make oral submissions.

Examples of third party interventions:

R (Das) v Secretary of State for the Home Department [2014] EWCA Civ 45. The charities Mind and Medical Justice intervened in a case concerning the Secretary of State’s policy of detaining people with mental health problems in immigration detention. Written and oral submissions were made, and the impact of them was clear, as the Court of Appeal referred to the contributions of the interveners more than fifteen times in giving judgment.

A and others v Secretary of State for the Home Department [2004] UKHL 56. Better known as the ‘Belmarsh case’, the result of this case was a declaration from the House of Lords that section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights. Liberty’s intervention in this case has been widely praised as having a significant impact.

Other examples:
Rahmatullah v Secretary of State for Defence [2012] UKSC 48 (Reprieve and Justice intervening).
R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 (Public Law Project Intervening).
Yemshaw v Hounslow London Borough Council [2011] UKSC 3 (Secretary of State for Communities and Local Government intervening).

The proposed Reforms:

The changes being proposed in the Criminal Justice and Courts Bill spell danger for would-be third party interveners. As discussed above, currently the courts have a discretion as to whether or not to allow third parties to intervene, and can restrict the evidence and submissions made by interveners, as well as having the last word on costs. Generally a helpful intervention will not result in a costs order against the intervener, and likewise an intervener will not be able to recover costs from the other parties. Similarly, an unhelpful or misguided intervention might result in a costs order against the intervener.

However, the balance of the Bill is very much against third party interveners when it comes to costs. It states under Clause 53(4) that the High Court or Court of Appeal “must order the intervener to pay any costs specified” by a party or interested party that have been incurred “as a result of the intervener’s involvement”. The court is only permitted to refuse to make such an order in “exceptional circumstances”. This is in complete contrast to Supreme Court Rule 46(3).

The impact of this clause will be to discourage charities and NGOs from intervening for fear of incurring financial costs, even if the issue is of great public interest. As a result the High Court and the Court of Appeal will lose the assistance that submissions and evidence from third parties gives them, and consequently will not have as rounded a picture (to quote Lord Hoffman again) as it would otherwise. It also raises some issues constitutionally as to who has the final discretion over costs orders in court: Parliament, or the courts. It is hoped, therefore, that this clause is amended.

References/Further Reading:

The Public Law Project
UK Constitutional Law Association
UK Human Rights Blog
(Thanks also to Martha Spurrier of Doughty Street Chambers for her notes.)