​​​​​​​ Standing in litigation

It is increasingly common for organisations, charities and individuals to seek leave to intervene in litigation or to simply join themselves as claimants, both in public law judicial review proceedings and in private law proceedings. It is much more common in public law proceedings.

The standing of any party may, of course, be challenged. A useful review of the law is found in the recent judgment of Chamberlain J in R (Good Law Project) v Secretary of State for Health and Social Services [2021] EWHC 346.

Standing is a matter of judicial discretion, but many useful general propositions may be elicited from the judgment.

General principles

The rule of law must be upheld. The judge will take a liberal view of those seeking to bring a claim before the court, wanting to vindicate rights. General factors are likely to include the significance or importance of the issues, the context, the prominence or prominent role of the claimant, the nature of the alleged breach of the law, the apparent merits or gravity of the claim and whether, for instance, this claimant is the only claimant.

If there is an admitted or apparent breach, that would appear to justify a challenge by way of judicial review. The breach might appear to be a serious repeated breach, eg concealment by the public authority, misleading the public, potentially depriving the public of an awareness and a remedy and departing from obligatory transparency. The matter in issue ought to be a matter of some seriousness or gravity or urgency, not simply some sort of gesture.

The remedy sought should be appropriate, for instance, a declaration may be sufficient; and whether a mandatory order or damages are sought.

There may be another means available for the claimant to seek a remedy, such as a tribunal or ombudsman, the Financial Conduct Authority (FCA) or even a member of parliament.

The claimant must be involved in the matter in some identifiable manner, eg financial or other economic involvement – or some manner beyond purely personal idle curiosity or interest. And there must be a genuine public interest for judicial review.

There may be no other claimant in a position to challenge the public authority in an informed and responsible manner on the relevant point of substance. On the other hand, there may be another claimant (perhaps a leading claimant) well able to take the leading point, so that the subsidiary claimant would be superfluous.

The claimant is expected to be genuine and sincere, not seeking to gain an inappropriate advantage or collateral benefit (even if there might be some benefit, such as a raised public profile or new incoming funds).

Is this claimant seeking a different purpose, for example, complaining about the breach for irrelevant reasons or to gain publicity for a political purpose?  Is the claim essentially a money raising exercise? It this claimant’s motive beyond the proper scope of legitimate legal litigation? Would this claim simply waste the judge’s time? 

Examples on standing

Situations in which standing might be challenged include these useful examples.

Procurement by a public authority usually requires open competitive tendering. The public authority may go ahead with a project in default of compliance with such a requirement.

Other traders and their trade association are thereby prejudiced. There may be no other remedy available. The public may be prejudiced by the resulting economic disadvantage. Individuals may suffer. A private law claim may be inadequate.

When the public finance initiative system was in force for building new schools, claimants sought relief because they just did not like the system. For political reasons many people do not like the establishment of private sector academy schools. They may be no more than political opponents. They may be parents very much interested in the type and quality of schools in their catchment area for their own children. They may be no more than childless people with a political ideology.

Other remedies may be readily and easily available, such as through the National Audit Office (NAO).

The local planning authority may have come to an arrangement with a developer but not made in accordance with the legal requirements.

The standing of a claimant is not often challenged. After all, they always run the risk of costs if they are struck out. But just in case the point should arise, the solicitor should always be prepared with the client justification for involvement.

Alec Samuels is a barrister