Interveners: Meddle at your peril

Part 4 of the Criminal Justice and Courts Act 2015 heralds changes to the judicial review costs regime. Sections 85 to 87 introduce provisions designed to discourage direct or indirect involvement by strangers to
the litigation, known as ‘interveners’.

Costs awards

Section 87 applies when a person (an intervener) is granted permission to file evidence or make representations and, at that time, the person is not:

• An applicant or defendant;
• An appellant or respondent; or
• Any other person directly affected on whom the application for judicial review or for permission was served.

An applicant or defendant may not be ordered to pay an intervener’s costs, unless the court considers that exceptional circumstances apply. The court must order the intervener to pay costs incurred as a result of the intervener’s involvement in that stage, unless exceptional circumstances make that inappropriate, if, on the application of a main party,
the court considers that:

• The intervener has acted, in substance, as the sole or principal main party;
• The intervener’s evidence and representations, as a whole, have not been of significant assistance to the court;
• A significant part of the intervener’s evidence and representations relates to matters which it is unnecessary for the court to consider at that stage; or
• The intervener has behaved unreasonably.

In deciding whether exceptional circumstances apply, the court must have regard to criteria to be specified in rules of court. The provisions do not apply where a court of its own volition invites someone to intervene (e.g. a secretary of state). Section 87 came into force in England and Wales on 13 April 2015 in relation to proceedings started by the issue of a claim form on or after that date.

Section 85 requires an applicant for leave to apply for judicial review to provide the court with information about the financing of the application. Rules of court will specify the information, but it may include the source, nature, and extent of financial resources available or likely to be available to meet litigation liabilities, and if the applicant is a company that cannot demonstrate that it is likely to have such resources, information about its members’ resources. The court must have regard to this information when considering costs awards.

Scope for abuse

These changes are part of the government’s programme of reforms designed to ‘reduce the burden’ of judicial review.

Clear targets of these changes are environmental and other pressure groups who become involved in legal challenges, whether behind the scenes by funding litigation or ‘on stage’
by being joined as parties.
For example, the Open Spaces Society (represented by Pushpinder Saini QC of Blackstone Chambers and Philip Petchey of Francis Taylor Building) intervened in the well-publicised ‘skate park’ judicial review of the refusal to register land on the South Bank as a town or village green.

Joinder can be controversial. The new rules are likely to make such bodies, especially if they are charities, more reluctant to become involved in litigation.

Sometimes a claimant does
not serve potential parties, even though they might consider themselves to have an interest in the proceedings. Under section 87, such persons, if they are granted permission to participate in the proceedings, will be treated as interveners. There is scope
for abuse, as the provisions may create a perverse incentive not
to serve relevant parties.

A recent example in which I appeared was IM Properties v Lichfield District Council [2014] EWHC 2440, a challenge to modifications to a draft development plan allocating land controlled by the housebuilder clients, whom the claimant did not serve, but who were subsequently joined as interested parties and awarded costs.

Section 87(11), however, provides for interveners to be treated as a relevant (i.e. main) party if they subsequently become one. Someone in this position in future should, therefore, seek an order for service of the claim on them
if permission is granted. SJ

Morag Ellis QC is a barrister practising from Francis Taylor Building

Copyright & permissions