My Lords, Clause 67 concerns those who intervene voluntarily in a judicial review and would see the court award reasonable costs against them—both their own and those their intervention causes a party—in most circumstances. Your Lordships’ Amendment 107 to this clause would provide absolute discretion to order an intervener’s costs against a party, or a party’s costs against an intervener, or not. That is effectively the current position, which in practice allows interventions to be made with very limited risk of any cost implications of how that is done, often with the taxpayer left to meet the bill.
As this House acknowledged during the Bill’s previous stages, the Government accept that Clause 67 as introduced caused concern, and we listened with care to the arguments raised. However, we think your Lordships’ amendments to the clause go too far, and so we have brought forward our own amendment in lieu. Our amendment strikes a proportionate and sensible balance: giving interveners the right incentives to ensure that they do not intervene inappropriately and more certainty about when they will face costs; giving taxpayers the protection they need; and giving the judges the scope they need to apply Parliament’s will to the circumstances of the case at hand.
Our amendment in lieu would place the court under a duty to award costs against an intervener if one or more of four conditions were met. The first condition is that the intervener has usurped a party’s proper role, perhaps because they want to drive the litigation without accepting the responsibility for costs which this entails. The second is where the intervener has simply not been of significant assistance to the court. Perhaps the intervener has argued at length, placing the parties at considerable expense, without advancing the court’s understanding of the issues. The third is that the intervener will meet a party’s reasonable costs of dealing
with the intervention where a significant part of their arguments are not germane to the court’s consideration of the case. They may, for example, spend much of their time in court pressing the importance of a cause in which they are expert, or indeed their own importance, with only a small amount of time spent focusing on the issues really at hand. Finally, the court will be under a duty to order costs where the intervener has acted unreasonably.
Following the amendment in lieu, Clause 67 will continue to give the court significant leeway when it comes to making costs orders. First, it will be for the court to consider whether any of the four conditions have been met, so it will look at the facts in every case. Secondly, and importantly, the amendment preserves the court’s role in deciding whether costs were in fact caused by the intervener and incurred by the party reasonably. Thirdly, where the court is of the view that there are exceptional circumstances which would make the award of costs under the clause inappropriate, it need not make an award. I am happy to be entirely clear that the exceptional circumstances carve-out would remain in the clause in light of the Government’s amendment in lieu. In fairness, that was not particularly clear in the debate in the House of Commons. Nobody said anything to the contrary, but it was not emphasised with sufficient clarity. Finally, Clause 67 quite purposefully would not affect the court’s discretion to invite an intervener to participate in a judicial review, which would take the intervener outside the ambit of the clause.
In the Government’s view, your Lordships’ amendments to this clause went too far in undermining their intended effect and perhaps underestimated the significant safe-guards built into the clause as agreed by the elected House. As such, the Government continue to be of the view that the first presumption in the clause—that a party must not, unless there are exceptional circumstances, be made to meet the costs an intervener accrues when making their intervention—should be retained as it was introduced and without amendment.
Nobody doubts that interveners can and do make a valuable contribution in a number of cases. They make a valuable contribution and can assist a court in deciding a case, but equally we think that it is appropriate that interveners should pause long and hard to think about whether they can truly add anything to a case and to make sure what they add is proportionate and sensible and provides assistance to the court. They should not act simply as a cheer-leader because it is an issue about which they feel strongly, and repeat all of the arguments that have already been made by one party; they should not expand the scope of the case beyond that which is before the court; and they should not, as a matter of routine, simply join in the case because it is the sort of thing that they feel strongly about.
We encourage focused interventions, but we do not wish to deprive judges of the interventions that are appropriate, nor do we wish to deprive them of the discretion which they have. We simply ask them to make up their mind whether these four conditions are satisfied. If one of those four conditions is satisfied, then they must order costs, unless there are exceptional
circumstances. Judges are best placed to decide whether they have been given assistance, and we do not seek to usurp that discretion. We think that interventions can be useful; they can also be over-lengthy and expensive. This is a moderate compromise, and a reflection of the anxiety which has been expressed by a number of noble Lords, and indeed, some Members of the other House, and I ask that the House accepts the amendments of the Government. I beg to move.
Motion D1