Human rights organisation Justice has published guidance on third-party interventions in High Court and Court of Appeal cases amid fears that new statutory rules on costs could deter interventions in the public interest.
In a foreword to Justice’s report, To Assist the Court, former Supreme Court president Lord Phillips of Worth Matravers (pictured) says he is ‘dismayed’ by section 87 of the Criminal Justice and Courts Act 2015, which ’robs the courts of the discretion that it normally enjoys’ by mandating the award of costs against an intervener in certain circumstances.
The legislation states that, provided certain conditions are met, the court must order an intervener to pay any costs specified in a High Court or Court of Appeal application which it considers ’have been incurred by the relevant party as a result of the intervener’s involvement in that stage of the proceedings’.
Warning that the legislation could have a ‘chilling effect’ on interventions, Phillips says Justice’s guide, co-authored with magic circle firm Freshfields Bruckhaus Deringer, ‘will assist interveners to ensure that they always add value to the court’s deliberations and are not at risk of being penalised in costs’.
Justice, one of the most frequent interveners in the Supreme Court, says ‘clear guidance’ is needed to ensure the rules ‘only bite upon abusive behaviour in practice’.
Justice says: ‘Without such legal certainty, we are concerned that otherwise responsible interveners... will be unduly deterred by an uncertain and difficult-to-ascertain threat of financial detriment.’
The report recommends the drafting of a new practice direction dedicated to the conduct of an intervention, which would reflect ‘detailed’ guidance provided by the Supreme Court in its ‘Rules of The Court’.
The practice direction could outline the information to be provided by a prospective intervener at the application for permission stage and the process that an intervener might follow after permission is granted. It could also create a framework against which ‘reasonable and responsible’ behaviour can be assessed.
The report also recommends better provision of online information about cases progressing through the senior courts to improve awareness of ongoing challenges and the potential for litigation in the public interest.
Justice says there is also a ’strong argument’ for all courts to ’adopt and affirm’ the Supreme Court’s guidance that charities and not-for-profit organsiations could be granted a waiver of fees in the public interest.
The report states: ’If an intervention is truly in the public interest, and the intervener is meeting their own costs to assist the court, the requirement to pay a substantial fee can act as a disproportionate deterrent.’
Paul Yates, head of London pro bono at Freshfields, said the firm hoped the guide would ensure that interventions, 'properly conducted, remain a valuable part of our legal system for the benefit of the courts and for the development of the law'.