Thu, 25 Jan 2018
A paper written by Chris Johnson of CLP and Tim Jones of No5 Barristers' Chambers
1. This paper considers the main rules that apply to interveners in proceedings for judicial review and some relevant case law.
2. Under Civil Procedure Rules (CPR) Part 54.17 (headed ‘Court’s powers to hear any person’) it is stated : -
(1) Any person may apply for permission: –
(a) to file evidence or
(b) to make representations at the hearing of the Judicial Review.
(2) An application under paragraph (1) should be made promptly.
3. In R (Air Transport Association of America Inc.) v Secretary of State for Energy and Climate Change  EWHC 1554, Ouseley J observed at para 8:
It has been the practice of this court for a number of years, well established and beneficial, to allow interventions by groups or bodies, or individuals who have particular knowledge and expertise in the area, whether in terms of the effect which the action at issue may have upon them and their interests, or by virtue of the work which they carry out or through close study of the law, practice and problems in an area, or because of the campaigning experience and knowledge which their activities have brought.
4. In Re Northern Ireland Human Rights Commission  UKHL 25,  NI 236, Lord Oliver held (at para 32):
The practice of allowing third persons to intervene in proceedings brought by and against other persons which do not directly involve the person seeking to intervene has become more common in recent years but it is still a relatively rare event. The intervention is always subject to the control of the court and whether the third person is allowed by the court to intervene is usually dependent upon the court’s judgment as to whether the interests of justice will be promoted by allowing the intervention. Frequently the answer will depend upon whether the intervention will assist the court itself to perform the role upon which it is engaged. The court has always to balance the benefits which will be derived from the intervention as against the inconvenience, delay and expense which an intervention by a third person can cause to the existing parties.
5. In R. (British American Tobacco UK Ltd) –v- Secretary of State for Health  EWHC 3515 (Admin),  CMLR 1016, the Administrative Court considered the circumstances in which it may be appropriate to grant permission to intervene. KZPT, the Polish Association of National Tobacco Growers, sought to intervene in this case which was challenging a European Union Directive. One of the main reasons for not allowing KZPT to intervene was, as stated by Turner J at para 19:
It is very unlikely that the formal intervention of KZPT would have any significant impact….There is no discernible conflict between the interests of [British American Tobacco] and those of KZPT. The information contained in the KZPT witness statements does no more than supplement, albeit with a greater level of potentially relevant detail, the evidence already relied upon by [British American Tobacco] in its Statement of Facts and Grounds.
6. Section 87(1)-(7) of The Criminal Justice and Courts Act (CJCA) 2015 states:
(1) This section applies where : –
(a) a person is granted permission to file evidence or make representations in judicial review proceedings, and
(b) at that time, the person is not a relevant party to the proceedings
(2) That person is referred to in this section as an “intervener”
(3) A relevant party to the proceedings may not be ordered by the High Court or the Court of Appeal to pay the intervener’s costs in connection with the proceedings
(4) Sub-section (3) does not prevent the court making an order if it considers that there are exceptional circumstances that make it appropriate to do so
(5) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, if the court is satisfied that the conditions described in sub-section (6) is met in a stage of the proceedings that the court deals with, the court must order the intervener to pay any costs specified in the application that the court considers have been incurred by the relevant party as a result of the intervener’s involvement in that stage of the proceedings
(6) Those conditions are that –
(a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent
(b) the intervener’s evidence and representations, taken as a whole, have not been of significant assistance to the court;
(c) a significant part of the intervener’s evidence and representation relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the stage in the proceedings;
(d) the intervener has behaved unreasonably.
(7) Subsection (5) does not require the court to make an order if it considers that there are exceptional circumstances that make it inappropriate to do so.
7. Therefore an intervener in judicial review will not be able to recover costs from the other parties unless there are exceptional circumstances and the intervener risks costs against themselves in the circumstances explained above at section 87(6) (once again unless there are exceptional circumstances). Section 87(6)(b)-(d) reminds interveners that their evidence and submissions must relate to the issues before the court. Any temptation to make points that are important to the intervener, but irrelevant to the particular issues before the court, should be resisted.
8. Section 88(4) of the CJCA 2015 limits the power to cap costs in judicial review proceedings, stating:
The court may make a costs capping order only on an application for such an order made by the applicant for judicial review in accordance with rules of court.
9. Therefore an intervener cannot seek a costs capping order or what is sometimes called a “protective costs order” in order to try and limit the amount of costs that may be awarded against them.
10. If an organisation is considering intervening in a judicial review action, we would always advise them to seek legal advice on the particular circumstances of the case in question. An alternative may be to offer to assist a party to the litigation without intervening.