The implications for access to justice of the Government's proposals to reform judicial review - Human Rights Joint Committee Contents


4  Interveners and costs

Government response

83. The Government, in its response to the consultation, acknowledged that interveners can add value, supporting the court to establish context and facts, and that the Government itself intervenes in litigation on occasion.[72] However, it still believed that those who choose to become involved in litigation should have a more proportionate financial interest in the outcome and that this should apply equally to interveners, and it intended to bring forward legislation to achieve this.

84. The Criminal Justice and Courts Bill would change the current position by introducing a presumption that those who intervene in a judicial review case will have to pay their own costs and any costs incurred by other parties to the litigation arising from the intervention.[73] The presumption is rebuttable only if there are "exceptional circumstances" which justify a different order.

85. The Bill provides that the High Court or the Court of Appeal cannot order a party to judicial review proceedings to pay the intervener's costs in connection with the proceedings,[74] unless there are exceptional circumstances making it appropriate to do so;[75] and that, where a party to the judicial review proceedings applies, the court must order the intervener to pay any costs that the court considers have been incurred by that party as a result of the intervention,[76] unless there are exceptional circumstances making it inappropriate to do so.[77] What constitute "exceptional circumstances" for these purposes is not defined in the Bill, but in determining whether there are such exceptional circumstances the court is required to have regard to criteria specified in rules of court.[78]

86. According to the Explanatory Notes to the Bill, the new presumption only applies where an intervener applies to the court for permission either to provide evidence or make submissions to the court. It does not apply where a person or body is invited by the court to intervene, because in such cases the intervener does not require the intervener to be granted permission.[79]

Analysis

87. The matter of who pays the costs of legal proceedings is usually entrusted largely to the courts' general discretion, to be exercised in light of all the circumstances of the case. Statutory provisions directing courts as to when they can and cannot order costs to be paid in relation to proceedings before them are unusual.

88. The prohibition on a court ordering that an intervener's costs be paid by another party is extremely wide: it would catch, for example, the situation in which a party contested an application by an intervener for permission to intervene, resulting in an oral hearing of the application at which the court rules that permission should clearly be given to the intervener. In such circumstances, the avoidable costs of the oral hearing are currently recoverable from the party which unreasonably resisted permission, but this would no longer be the case under the provisions in the Bill. Nor is it clear on the face of the Bill that the narrow exception, permitting a different order to be made in "exceptional circumstances", would enable the intervener's costs to be awarded in such a case.

89. Similarly, and more seriously, the requirement that the court must order the intervener to pay the costs incurred by other parties as a result of the intervention is also extremely broad: on its face it would appear to apply even where the outcome of the case is as argued for by the intervener and the intervention made a significant contribution to that outcome. Under the current law, it is inconceivable that costs would be awarded against the intervener in such a case, but under the Bill that possibility arises and it is again not clear on the face of the Bill that the "exceptional circumstances" exception would apply. The evidence we have received from many organisations with experience of interventions suggests that this risk of exposure to a costs liability will deter many of those organisations from intervening in future, because as relatively small charitable organisations they could not take the risk of being landed with a large costs bill as a result of their intervention.[80]

90. We also question the justification for the clause distinguishing between those interveners who are invited by the court to intervene (who do not require permission) and those interveners who apply and are granted permission by the court. Both have the court's approval for intervening, so it is not immediately apparent to us why the costs regime should be so starkly different in each case.

91. Finally, it is not clear to us at what mischief this clause is aimed. The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties.

Recommendation

92. Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case. Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties' costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention.

93. We therefore recommend that the Bill be amended in order to restore the judicial discretion which currently exists, by leaving out the relevant sub-clauses.

94. The following amendment would give effect to this recommendation:

Page 55, line 30, leave out sub-clause (4) and (5)

Page 55, line 37, leave out 'or (5)'


72   Government response to consultation, para. 62. Back

73   Clause 55. Back

74   Clause 55(2). Back

75   Clause 55(3). Back

76   Clause 55(4). Back

77   Clause 55(5). Back

78   Clause 55(6). Back

79   Clause 55 applies where an intervener is granted permission to intervene: see clause 55(1), as explained in Bill 169-EN para. 381. Back

80   JUSTICE, Liberty, Public Law Project, Amnesty International, Reprieve. Back


 
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Prepared 30 April 2014