Presumptive Costs Orders: A Threat to Public Interest Interventions (Part I)
The Criminal Justice and Courts Bill received its second reading in the House of Lords on 30 June 2014 and has now been referred to committee stage. Part 4 of the Bill contains a package of reforms to the judicial review process, including a proposed new costs rule for interventions in the High Court and the Court of Appeal. The new rule is a serious concern for human rights litigation in the United Kingdom.
Clause 67 of the Bill will, in two respects, remove the courts’ general discretion in relation to costs in a judicial review proceeding. First, the court will not be permitted to order payment of an intervener’s costs, unless there are “exceptional circumstances” (cl 67(2) and (3)). Second, the court must, on application by a party to the proceeding, order an intervener to pay that party’s costs incurred “as a result of the intervener’s involvement in the proceeding” (cl 67(4)). The court may only refrain from making such an order if there are “exceptional circumstances” (cl 67(5)). This is a significant shift from the current position, where in recognition of the distinct, court-assisting role they play, public interest interveners ordinarily bear their own costs and are not liable to pay other parties’ costs, regardless of the outcome. It is also an unusual, restrictive incursion into the courts’ general powers to determine costs liability. In that context, one might legitimately expect the Government to provide a strong rationale for change. Worryingly, that has not been the case.
In its consultation material, the Government has described its proposals as being necessary to ensure “that those involved [in judicial review proceedings] have a proportionate financial interest in the costs of the case.” It has endorsed the “general principle” that “where a party chooses to intervene in judicial review proceedings …, ordinarily that should not result in additional expense for the existing parties to the litigation.” It has spoken before the JCHR of judicial review being used for “campaigning purposes” and as a “delaying” tactic; and before the Public Bill Committee of interventions becoming “a risk-free enterprise for many organisations and for which the taxpayer is shouldering the burden.”
The problem is, however, that the proposed rule is itself wholly disproportionate; it misconceives and greatly undervalues the role of interventions in the judicial review process and the courts’ responsibility for regulating their scope; and it will in practice shut out public interest interventions in Human Rights Act litigation.
As currently drafted, even where submissions made by an intervener are accepted and endorsed by the court, there is to be a presumption that the intervener will pay the state defendant’s costs. As reported by the JCHR, the presumption will also apply in circumstances where the Government unsuccessfully contests an intervener’s application for permission. It is difficult to see how an intervener could argue “exceptional circumstances” simply on the basis that the court accepted the arguments it advanced – it is surely not “exceptional” that an intervener might succeed in persuading a court to a view of the law different to that held by a state defendant. So, it is hard to see how this rule results in an intervener having a more “proportionate” financial stake in the outcome of a case.
However, the most troubling aspect of the proposed rule is what it reveals about the Government’s view of adjudication in public law litigation. Interventions typically are only sought, and certainly only permitted, where the intervention will assist the court in reaching a proper determination. As Arshi and O’Cinneide explain, the “core rationale for judicial intervention” is “the introduction of relevant perspectives and expertise into the judicial process in order to serve the public interest in good adjudication.” In other words, the public interest in the court hearing from those in a position to provide relevant data, experience and legal argument concerning the issues before it. All the more so in human rights cases, where the wider contextual impact of a decision more readily engages the need for third party assistance, especially from organisations representing marginalised voices or that have particular knowledge and experience of human rights discourse at both the domestic and international level.
In a follow-up post, I will explore further this public interest rationale, and see precisely what consequences for good adjudication the proposed costs rule is likely to have.