Interventions in strategic litigation
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Marc Bloomfield
Description: Lady Justice close up (Hermann Traub_Pixabay)
Liz Davies QC and Matthew Ahluwalia explore the benefits and potential risks of NGOs, charities and similar organisations intervening in judicial reviews and civil litigation claims.
It is not uncommon for individuals or organisations to be joined as additional parties in strategic litigation.1For examples of representatives of the devolved nations intervening in constitutional cases, see AXA General Insurance Ltd and others v Lord Advocate and others [2011] UKSC 46 and R (Miller) v Prime Minister [2019] UKSC 41; December 2019/January 2020 Legal Action 40. The latter was the prorogation of parliament case, in which Sir John Major, Baroness Chakrabarti (shadow attorney general at the time) and the Public Law Project also intervened. Commercial institutions have been granted permission to intervene, see Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, where the Association of British Insurers intervened. The Equality and Human Rights Commission (EHRC) is a frequent intervener – see, for example, R (DA and others) v Secretary of State for Work and Pensions [2019] UKSC 21; July/August 2019 Legal Action 37 and R (Miller) v Prime Minister. This article concentrates on interventions by NGOs, charities and similar organisations, usually in the area of social welfare.2For examples, see R (SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16 (challenge to the benefit cap where Child Poverty Action Group and Shelter Children’s Legal Service intervened), R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; April 2016 Legal Action 36 (entitlement to student loan, Just for Kids Law intervening), and R (DA and others) v Secretary of State for Work and Pensions (see note 1 above) (challenge to the benefit cap where Shelter and Just Fair intervened).
A successful intervention can be of real assistance to the court, ensuring that the bigger picture is presented and that the dispute between the parties is seen in the broader context. A poorly prepared one can expose the intervener to a costs risk and potentially undermine a party’s case. Given recent legislative changes, and increasingly hostile political rhetoric towards lawyers acting in challenges to the government, it is hoped that NGOs, charities and other organisations will find a short guide on effectively intervening useful as a tool for empowering our clients.
Consider what you can bring to the table
An application to intervene must assist the court with evidence or representations not provided by the parties. Lord Hoffmann’s remarks in Re E (a child) (Northern Ireland) [2008] UKHL 66; April 2009 Legal Action 34 are often cited:
2. … In recent years the House has frequently been assisted by the submissions of statutory bodies and non-governmental organisations on questions of general public importance. Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help.
3. An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. It is not the role of an intervener to be an additional counsel for one of the parties. This is particularly important in the case of an oral intervention. I am bound to say that in this appeal the oral submissions on behalf of the [Northern Ireland Human Rights Commission] only repeated in rather more emphatic terms the points which had already been quite adequately argued by counsel for the appellant. In future, I hope that interveners will avoid unnecessarily taking up the time of the House in this way.
The same principles still apply: see R (British American Tobacco UK Ltd) v Secretary of State for Health [2014] EWHC 3515 (Admin) at para 19, where the court rejected an application by a foreign tobacco growers’ association to intervene as it was doing little more than supplementing the claimant’s case.
Added value: evidence
The bottom line is that an intervener must add value to the proceedings, with an additional perspective not provided by the parties. Interveners will usually provide research, data or case studies involving clients or service users affected by the issues. NGO interveners have also submitted the results of freedom of information requests, as well as evidence from frontline advisers.3See Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51; March 2020 Legal Action 46 and R (Ncube) v Brighton and Hove City Council [2021] EWHC 578 (Admin); June 2021 Legal Action 36. Shelter intervened in both cases. Individual parties are not resourced for research. The ‘added value’ arising from the intervention is therefore most often contained in the evidence.
In R (Das) v Secretary of State for the Home Department [2014] EWCA Civ 45, interveners Mind and Medical Justice submitted evidence containing publicly available research reports and statements from relevant professionals, which was referred to multiple times in the judgment (see paras 58 and 71). In Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51; March 2020 Legal Action 46, the judgment describes intervener Shelter’s evidence as presenting ‘a bleak picture of the difficulties faced by homelessness applicants in bringing an appeal under s204 of the [Housing Act 1996] without legal advice and representation, and of the difficulties they may face in finding someone to provide those services under legal aid, especially as a result of the post-[Legal Aid, Sentencing and Punishment of Offenders Act 2012] shrinkage of the housing advice sector’ (para 34) – an important finding in the context of the case, which concerned the appellant’s appeal having been lodged late due to him being unable to obtain legal advice in time, and was not evidence that the appellant would have been able to obtain himself.
Interventions should not be used simply to amplify legal submissions or present a party’s case differently; nor should they be a means to overcome problems with standing.4For a recent discussion of the standing of NGOs to bring claims in judicial review, see R (Good Law Project and Runnymede Trust) v Prime Minister and Secretary of State for Health and Social Care [2022] EWHC 298 (Admin).
Getting organised early
The importance of reaching out to the parties in the case at an early stage cannot be overstated. A potential intervener should set out why it wants to intervene, the proposed submissions, and the ‘added value’ it can bring to the case.
It is useful to contact the parties in advance, requesting consent to the application for permission to intervene. The parties are most likely to consent if it is suggested that the intervener will bear its own costs, meaning that the intervener will neither seek costs from the winning party nor should it be ordered to pay costs. It is also helpful if the proposed intervention will not delay the hearing, or substantially lengthen the time estimate for the hearing. It is often helpful to suggest that oral submissions be time-limited.
Interveners may consider applying to intervene at the Court of Appeal rather than first instance stage. Different procedural rules govern interventions in the Supreme Court.5Supreme Court Rules 2009 SI No 1603 r26 provides for applications for permission to intervene to be made after permission to appeal has been given or a notice of appeal filed.
Interventions in judicial review claims
Procedure
In judicial review proceedings, Civil Procedure Rules 1998 (CPR) r54.17 allows any person to apply for permission to intervene, file evidence or make legal submissions, including at a hearing. An application to intervene should be made promptly. The court is unlikely to accede if the application would have the consequence of delaying the hearing of the relevant proceedings (CPR Practice Direction (PD) 54A para 12.2).
CPR PD 54A para 12 provides guidance. The application notice must be served on all parties. It should include a summary of the representations to be made, and6Article corrected on 4 August 2022 to omit the word ‘draft’. evidence, with the relevance explained. If the parties consent, the application can be considered on the papers (para 12.7). If the position on costs departs from the costs provisions at Criminal Justice and Courts Act (CJCA) 2015 s87 (considered below), a draft order should be filed setting out the grounds for the departure. Para 12.4 reminds interveners of the ongoing duty of candour in judicial review proceedings.
Anticipating potential cost risks
CJCA 2015 s87 governs costs orders made against an intervener. The starting point is that a party should not be ordered to pay the intervener’s costs unless there are exceptional circumstances that make it appropriate to do so (s87(3)–(4)).
More concerningly, s87(5)–(6) requires the court to make a costs order against the intervener if it is satisfied that one or more of these conditions are met (s87(6)):
(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 representations 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.
If any of those conditions are met, the principle can be disapplied only if the court considers that there are exceptional circumstances that make it inappropriate to order the intervener to pay costs (s87(7)).
It follows that an intervener is at risk of paying a party’s costs whatever the outcome of the case. Note also that interveners cannot seek costs capping orders (CJCA 2015 s88(4), which restricts the applications for costs capping orders to applicants for judicial review).
A properly considered intervention that genuinely adds value without taking over the case should not attract an adverse costs order. The cautious approach, however, is to seek the parties’ agreement to an order excluding the provisions of s87(5) on the basis that the intervener will not seek costs against the parties.
Considering alternatives
Potential interveners might consider whether they can better support a party’s case by providing evidence (in the form of a witness statement with case studies or research exhibited) or supporting a campaign.
Interventions in civil litigation
Strategic litigation is not limited to judicial review proceedings. Arguably the most successful recent examples of third-party interventions were not in judicial review proceedings, namely:
Shelter’s intervention in Al Ahmed v Tower Hamlets LBC (see above); and
the joint intervention by Public Law Project, Liberty and Child Poverty Action Group in RR v Secretary of State for Work and Pensions [2019] UKSC 52; May 2020 Legal Action 25, where the Supreme Court was considering the application of the Human Rights Act 1998 to secondary legislation, in a case to do with the bedroom tax.
The Housing Law Practitioners’ Association has also intervened in possession cases before the Court of Appeal.7Arkin v Marshall [2020] EWCA Civ 620; June 2020 Legal Action 44 and Khan v Mehmood [2022] EWCA Civ 791.
Procedure
An application for permission to intervene is brought under CPR 19.2(2):
The court may order a person to be added as a new party if –
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; …
There is limited guidance at CPR PD 19A paras 1.1–1.5. As in judicial review claims, it is advisable to obtain the parties’ consent before making the application. If all parties consent, the application can be determined without a hearing (para 1.2). The PD does not explicitly provide for the draft representations and evidence to be filed as part of the application, but clearly the application will be more likely to succeed if it contains as much information as possible.
Costs
CJCA 2015 s87 does not apply to civil litigation outside judicial review claims. However, the general principle that a losing party should not pay two sets of costs (those of the winning party and of the intervener) has been applied in some jurisdictions.8Berkeley Burke Sipp Administration LLP v Charlton [2017] EWHC 2396 (Comm) (where the Financial Ombudsman Service intervened) and Cadbury UK Ltd v Comptroller General of Patents, Designs and Trade Marks (Costs) [2016] EWHC 1609 (Ch) (where Société des Produits Nestlé SA intervened). As in judicial review claims, parties are more likely to consent to an application for permission to intervene where it is agreed that the intervener will bear its own costs and not pay the winning party’s costs.
The authors are grateful to Sebastian Elgueta and Maha Sardar, both at Garden Court Chambers, for comment on interventions in judicial review and civil litigation.
 
1     For examples of representatives of the devolved nations intervening in constitutional cases, see AXA General Insurance Ltd and others v Lord Advocate and others [2011] UKSC 46 and R (Miller) v Prime Minister [2019] UKSC 41; December 2019/January 2020 Legal Action 40. The latter was the prorogation of parliament case, in which Sir John Major, Baroness Chakrabarti (shadow attorney general at the time) and the Public Law Project also intervened. Commercial institutions have been granted permission to intervene, see Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, where the Association of British Insurers intervened. The Equality and Human Rights Commission (EHRC) is a frequent intervener – see, for example, R (DA and others) v Secretary of State for Work and Pensions [2019] UKSC 21; July/August 2019 Legal Action 37 and R (Miller) v Prime Minister»
2     For examples, see R (SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16 (challenge to the benefit cap where Child Poverty Action Group and Shelter Children’s Legal Service intervened), R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; April 2016 Legal Action 36 (entitlement to student loan, Just for Kids Law intervening), and R (DA and others) v Secretary of State for Work and Pensions (see note 1 above) (challenge to the benefit cap where Shelter and Just Fair intervened). »
3     See Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51; March 2020 Legal Action 46 and R (Ncube) v Brighton and Hove City Council [2021] EWHC 578 (Admin); June 2021 Legal Action 36. Shelter intervened in both cases. »
4     For a recent discussion of the standing of NGOs to bring claims in judicial review, see R (Good Law Project and Runnymede Trust) v Prime Minister and Secretary of State for Health and Social Care [2022] EWHC 298 (Admin)»
5     Supreme Court Rules 2009 SI No 1603 r26 provides for applications for permission to intervene to be made after permission to appeal has been given or a notice of appeal filed. »
6     Article corrected on 4 August 2022 to omit the word ‘draft’. »
7     Arkin v Marshall [2020] EWCA Civ 620; June 2020 Legal Action 44 and Khan v Mehmood [2022] EWCA Civ 791»
8     Berkeley Burke Sipp Administration LLP v Charlton [2017] EWHC 2396 (Comm) (where the Financial Ombudsman Service intervened) and Cadbury UK Ltd v Comptroller General of Patents, Designs and Trade Marks (Costs) [2016] EWHC 1609 (Ch) (where Société des Produits Nestlé SA intervened). »

About the author(s)

Description: Liz Davies - author
Liz Davies is a barrister specialising in housing law at Garden Court Chambers.
Description: Matthew Ahluwalia - author
Matthew Ahluwalia is a barrister at Garden Court Chambers.