Intervention: Practical tips

Intervention: Practical tips 1. The topic I am supposed to be addressing today is Intervention: Practical tips. I will try to fulfil that brief, but hope to be able to touch in that broad context also upon some current problems for interveners, to which interveners and those who represent them should be alert, and to which they may have to be prepared to respond. 1 Identifying cases in which to intervene 2. Perhaps the first practical issue for the intervener is knowledge that proceedings in which it may be interested in intervening are contemplated or actually proceeding. An intervener will be in difficulties if it seeks to come into proceedings at a late stage when doing so will derail a timetable that the Court has already set. 3. There are various potential ways of finding out what cases are being pursued. One is the building of networks with solicitors and counsel who have an interest in the area of practice in which the intervener is involved. That can be a fruitful source of information. 4. I have been involved in two immigration cases recently in which those acting for the claimant actively sought to keep potential interveners informed about the cases. In one of these, JB (Nigeria) v Secretary of State for the Home Department, a case involving a victim of trafficking, and a decision to return to Italy under Dublin II, the AIRE Centre intervened in writing. 2 The other case did not proceed to a hearing, but the intervener, for whom in that case I was due to appear, was UNHCR, and the subject matter was the proper interpretation of Article 1D of the Refugee Convention, following on from the decision of the Court of Justice in Case C-346/11 El Kott v Bevándorlási és Állampolgársági Hivatal (Grand Chamber, 19 December 2012), a case originating in Hungary and in which UNHCR had also intervened. 5. Some counsel now also make it their practice in appropriate cases to seek orders for intimation and service of particular petitions to potential interveners, to give them the fullest opportunity to intervene in some way if they are interested. That may be a useful tool, although I suspect one to be used with a degree of restraint and discretion. Potential interveners are likely to be able to give more attention to cases of interest if they are not swamped with petitions. 1 For an excellent review of third party interventions in the UK (and in some other jurisdictions), and issues arising in relation to such interventions, see To Assist the Court, Justice, 2009. 2 [2014] CSOH 126

6. The Rules of Court envisage interveners, at least in judicial reviews, as persons to whom RCS 58.8(2) does not apply that is, they are not persons directly affected by an issue raised, and who may therefore apply by motion to enter the process. 3 That may beg the question as to the nature and extent of the interest of a potential intervener such as to merit intimation and service. The court is of course the gatekeeper in respect of orders of this sort. In some cases the nature of the interest will be self-evident, as in the case of CEHR, which would have statutory standing to raise proceedings in relation to certain types of issue itself, or perhaps a body such as UNHCR, which is charged by international law with responsibility for the supervision of the application the Refugee Convention. 4 In the case of CEHR, practice has extended on some occasions to citing the Commission as a respondent, given its statutory standing. 5 7. So far as the Supreme Court of the United Kingdom is concerned, the website of the Court provides a very valuable resource in that it lists the cases that will be proceeding to a hearing, tells the public what the issues in them are, and also provides information about grants and refusals of permission. It is a model of transparency and clarity. There is, unfortunately, no equivalent resource in relation to the Scottish Courts to alert potential interveners to cases that may be of interest. Oral submissions? 8. I would like to say a little about the merits of intervening orally as opposed to intervening only by way of written submissions. There is no doubt that written submissions have the potential to assist the court. Looking at JB, although Lord Armstrong s Opinion does not mention the intervention, the intervention to some extent informed the submissions that I came to make as counsel for the petitioner in that case. In my view, for what that is worth, the intervention assisted, and, at least through the medium of its having influenced the oral submissions made for one of the parties, had some influence. Inevitably, though, the submissions for the petitioner did not have the same emphasis as the submissions in writing for the AIRE Centre, because, as counsel do, I sought to place weight on the lines of argument that I thought particularly assisted the petitioner. 9. The procedure for intervention in judicial reviews in Scotland does not encourage the use of oral submissions by interveners. The criterion is exceptional circumstances. 6 3 See RCS 58.8A. 4 Equality Act 2006, section 30; UNHCR Statute, paragraph 8(a). 5 Treating ECHR in this way must surely avoid the difficulties mentioned later in this paper associated with questions as to whether an intervener is a party. 6 See RCS 58.8A(9)(b); see also 94.5(3)

I wonder whether the time has either to ask the Civil Justice Council to review that rule, or for interveners in appropriate cases to test at least tentatively its limits by making applications to make oral submissions. The court does not appear to be overburdened with interventions. The resources of interveners are limited, and they tend to choose carefully into which processes to enter. The submissions of interveners could easily be limited as to time, as they are in the Supreme Court, avoiding the risk of protracting proceedings unnecessarily. Even bearing in mind the responsibilities incumbent on interveners and their counsel to exercise care and discretion in making and conducting interventions so as to make the court welcome, rather than be suspicious of, future interventions, there will be scope in appropriate cases for focused oral submissions genuinely to assist the court. There is no obvious need to restrict their deployment to exceptional circumstances or cases, particularly when interventions themselves are, if not exceptional, still relatively unusual in the Scottish courts. 10. Oral submissions are important. They present an immediate opportunity to persuade the court in the course of face to face discussion. They do not get lost among the papers. They are reactive. They can take into account the exchanges that have taken place between the court and counsel for the parties, the direction of which cannot be foreseen at the time that the written submissions are drafted. They provide an opportunity to answer questions that the court may have, and may have particularly for the intervener. 11. In the Article 1D case, which was not a judicial review, but an appeal to the Inner House, and therefore one in which there are no rules of court for interventions other than by the Scottish Human Rights Commission and the CEHR, Lord Drummond Young, as the judge dealing with procedural matters, permitted UNHCR to make oral submissions. Recording that there has been an intervention 12. There does not seem to be a fixed practice in the Court of Session s publication of Opinions regarding information as to whether or not there has been an intervention. As with JB, the report of the Outer House decision in Scotch Whisky Petitioners 2013 SLT 776 does not record the intervention by Alcohol Focus Scotland. An interested student will find an Opinion of Lord Hodge setting out his reasons for permitting the intervention, but will not discern the existence of the intervention elsewhere in the published information. 13. This is not simply a plea entered on behalf of counsel who might like to see their involvement in the case recorded for posterity and for their own CVs. For the

professional or academic who wishes to be able to trace the extent to which interventions occur, and to which they may come to influence the outcome of a case, it is an unfortunate lacuna. Where there is no prescribed procedure for intervention 14. There is a prescribed form of procedure in Scotland for intervention in judicial reviews. 7 Where, as in the case of appeals to the Inner House, there is no set form of procedure for intervention, that is not a bar to intervention. In IA, in the light of liaison with the Clerk to the First Division, the intervener used a modified form of the application that CEHR would use under Chapter 94 procedure. 8 Similarly, in proceedings in the High Court of Justiciary Appeal Court relating to a possible contempt of court, Liberty was granted permission to make submissions, notwithstanding the absence of any prescribed procedure for intervention. 9 Liability for expenses 15. It has been conventional, at least where genuine public interest interveners are concerned, for each party to bear its own expenses in respect of the intervention. 10 There is, however, specific provision in RCS 58.8A(7), in the context of judicial review, for the court to impose conditions on an intervention, including provision in respect of any additional expenses incurred by the parties as a result of the intervention. In some recent applications to intervene the application has incorporated an application for a protective expenses order, asking the court to find at that stage that no expenses will be awarded to or by either party. This procedure was followed in the application by Alcohol Focus before Lord Hodge, who granted the order sought. 11 Expenses are in general a matter for the discretion of the court, and it seems to be a sensible precaution to seek formally to limit liability for expenses at the outset. 16. It is not unknown for an intervener to be found liable for expenses. Perhaps the best known instance is R(E) v Governing Body of JFS and another (United Synagogue and others intervening), in which the intervener was found liable for a proportion of the 7 RCS 1994, 58.8A. Also for interventions by the Commission for Equality and Human Rights, and the Scottish Commission for Human Rights: Chapters 94 and 95. 8 IA (Iran) v Secretary of State for the Home Department 2011 SC 625. For the outcome of the appeal in the Supreme Court, see 2014 SC (UKSC) 105. 9 Anwar, Petitioner 2008 JC 409 10 Although, in relation to England and Wales, see clause 73 of the Criminal Justice and Courts Bill (formerly clause 53). 11 [2012] CSOH 156. A similar procedure was followed in the JB intervention by the AIRE Centre.

claimant s costs. 12 The case concerned the lawfulness of affording priority, as regards admission to an oversubscribed school, to children who were Jewish by matrilineal descent. The United Synagogue intervened, but by the stage of proceedings in the Court of Appeal it had assumed a role which went beyond that of an intervener, and had assumed much of the responsibility for presenting the school s case. The costs award made by the Court of Appeal was mitigated by the Supreme Court. 13 The intervener retained protection against costs in respect of the proceedings in the Administrative Court, but because its role had transformed in the Court of Appeal it was found liable for 20% of the costs of the claimant. A flavour of this is given by the circumstance that counsel for the intervener in the Court of Appeal became counsel for the school in the Supreme Court. 17. What is important here is the character of the intervention. It ceased to be an independent public interest intervention, and became effectively a submission for one of the parties. The public interest character of the intervention will of course also be of importance if the intervener is to satisfy the court that it is appropriate to make a protective expenses order. The character of the intervention and the intervener is something to which I will return later in this paper. The distinction between public and private interest interveners is perhaps not always as clear as might first be thought. 14 Other hazards of litigation 18. A practical issue, perhaps one that it is hard to avoid, is the fact that parties may settle their case, and all of your efforts will go unread and unheard by the court. I am not sure that I have a practical tip to help you avoid this, although obviously cooperation and liaison with the parties will give you the best chance of doing so. Two recent interventions in the Court of Session have come to an end with the settlement, or partial settlement, of matters between parties. One was the Article 1D 12 [2010] 2 AC 728 13 Lord Hope of Craighead DPSC at paragraph 217. 14...the elusive quality of the distinction between cases where a third party should be heard in his or her own interests and those where the court will wish to hear the intervention in the public interest. An intervener will almost certainly wish to urge his or her own interests: but in the case of a public interest intervener those interests will not be like those of a directly affected party who ought to be brought into the proceedings under one or other [procedural rules]. Rather, the interests in question are likely to consist of a defined, and no doubt emphatic, policy stance as regards the subject matter of the issue being considered. We would once again emphasise that it is of the greatest importance to differentiate an interest of this kind from the personal interest of a party whose pocket or liberty is affected by a decision taken by a public body. JUSTICE/Public Law Project A Matter of Public Interest (1996) p22.

case, and the other was a case billed at one stage as the Scottish Bournewood, in which CEHR intervened in writing on certain issues. 15 What will assist the court? 19. What an intervention should bring is a perspective or analysis which none of the parties is offering to the court. The intervener is not bound to tailor its submissions in the way that best serves the interests of a party in the litigation, and is therefore free to advance submissions which neither party may wish to advance, but which may be of assistance to the court. 20. There is, moreover, no point in repetition. If something is going to be said by a party, there is little value in the intervener s simply saying it again. That proposition perhaps requires qualification, in that the fact that a particular intervener makes the same principled point as a party may just in some circumstances have some influence on the weight to be accorded to it. 21. The general rule, however, is one against repetition, particularly in oral submissions, and was stated very clearly by Lord Hoffman in Re E [2009] 1 AC 536 at paragraphs 2-3: It may however be of some assistance in future cases if I comment on the intervention by the Northern Ireland Human Rights Commission ( NIHRC ). In recent years the House has frequently been assisted by the submissions of statutory bodies and non-governmental organisations on questions of general public importance. Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help. An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. It is not the role of an intervener to be an additional counsel for one of the parties. This is particularly important in the case of an oral intervention. I am bound to say that in this appeal the oral submissions on behalf of the NIHRC only repeated in rather more emphatic terms the points which had already been quite adequately argued by counsel for the 15 Thirty Nine Essex Street, Mental Capacity Law Newsletter May 2014: Issue 46, referring to DC v Mericourt Ltd and others.

appellant. In future, I hope that interveners will avoid unnecessarily taking up the time of the House in this way. 22. If an intervention takes place for the first time in appellate proceedings, the intervener should be able to identify with particular clarity the issues as they have developed in the case and been advanced by the parties, and also what value, and what fresh perspective they will be in a position to bring. 23. Concision is an important merit both in written and in oral submissions. It is encouraged by the word limits to which written submissions in the Court of Session are subject, and also by limitations on the time afforded for oral submissions. If one is not repeating what others have already said, concision should not be too much of a challenge. A written submission by an intervener need not rehearse the factual background in the way that parties may have to, but can cut quickly to the point, and should seek to engage the interest of the court persuasively on points of principle and policy that support the position of the intervener. References to the CJEU is an intervener a party? 24. Two recent cases make this question apt for discussion. The Rules of the Court of Justice determine who may participate in preliminary rulings proceedings. 16 One of the categories who may are the parties to the main proceedings. The matter arose in the Court of Session, again in the Scotch Whisky case, on an application by Alcohol Focus Scotland. 17 Although AFS had intervened in the Outer House, they had taken no part in the Inner House proceedings. It became clear in the course of the reclaiming motion that the court intended to make a preliminary reference to the CJEU. At that stage Alcohol Focus sought again to intervene, stating frankly that their aim was secure standing to lodge written observations and make oral arguments in the CJEU. The court found that the application came too late, a matter that is relevant to its exercising its discretion in deciding whether or not to allow an intervention. 18 What is of more interest, and of more concern to public interest interveners, is the reasoning of the court to the effect that an intervener is not a party. 25. The reasoning is brief. It is cited in another recent case, this time from the Administrative Court, R (British American Tobacco UK Ltd) v Secretary of State for Health; R (on the application of Philip Morris Brands Sarl and another) v Secretary of State 16 Article 23 of the Statue of the Court of Justice of the European Union; Articles 96 and 97(1) of the Rules of Procedure of the Court of Justice. 17 [2014] CSIH 64. 18 Although not necessarily a bar from the point of view of the CJEU see Rules of Procedure Article 97(2)

for Health. 19 The case concerns a challenge to a Directive about the presentation and sale of tobacco products. The Polish National Association of Tobacco Growers sought permission to intervene. The Administrative Court declined to grant permission for a number of reasons on which I will not dwell, but also considered that if it was wrong to do so for those reasons, the proposed intervener would not be a party for the purposes of the reference. The court discerned, probably correctly, that the CJEU wished the concept of parties to the main proceedings, to be circumscribed to some extent. It had regard to the explanatory remarks introducing Article 97 of the Court s Rules of Procedure, and to the decision in Football Association Premier League v QC Leisure, in which the CJEU refused to allow a number of companies to participate in a preliminary reference even though they had been joined as parties by the High Court in England, and expressed some degree of disapproval of the idea that they should be parties only for the purpose of the reference. 20 26. Notwithstanding all of this, I would suggest that it is possible to respect the policy of the CJEU in not wishing to have proceedings prolonged and disrupted by unnecessary interventions without adopting a construction of party which is unduly narrow and tied too closely to the role of a party in a litigation as it is normally understood domestically. 21 Interveners should be ready to submit that the court should not adopt a narrow view of the meaning of party in this context. To do so risks depriving the CJEU of submissions that may be of genuine assistance. The touchstones should, I suggest, be whether the intervention is a genuine public interest intervention perhaps something difficult to say in the tobacco case; the value that the Court is likely to derive from the intervention; and possibly, at least in some cases, the extent to which the intervener is likely to continue to participate in the proceedings if they return to the national court. It is difficult to see why, for 19 [2014] EWHC 3515 (Admin) 20 C-403/08 and C-429/08 (16 December 2009) http://www.bailii.org./eu/cases/euecj/2009/c40308_o.html, 21 In terms of RCS 1.3, a party is a person who has entered appearance in an action or lodged a writ in the process of a cause (other than a minuter seeking leave to be sisted to a cause). Cause means any proceedings ; and writ means summons, petition, note, application, appeal, minute, defences, answers, counterclaim, issue or counter issue. Interveners, who apply to intervene by way of minute, are not explicitly excluded in the way that minuters are who seek leave to be sisted to a cause. It may be at least arguable that the definition in RCS does not exclude an intervener, who will have lodged a minute in the process, and possibly also a note of written submissions. The court does have power at common law to regulate its own procedure, and it is also perhaps arguable that it need not necessarily be bound by a restrictive definition of party (assuming that interveners are excluded by the terms of RCS 1.3) when determining who is a party to the main proceedings for the purposes of a reference. The position may be different in England and Wales, and the Administrative Court in R(BAT) made reference to various provisions of the CPR.

example, CEHR should not be treated as a party for this purpose, when it might have had title to raise the proceedings itself, and it is by accident of fate that it is simply an intervener. 27. Similarly, UNHCR, which is entitled as a matter of domestic law to participate in asylum cases in the First-tier and Upper Tribunals 22, and which has a particular role in the supervision of the Refugee treaty, is likely to be a party and I use the word deliberately which is uniquely well placed to assist the court. UNHCR becomes a party to First-tier Tribunal proceedings if it applies to do so, so it would be particularly anomalous if the fact that there is no procedural means of its appearing in the higher courts other than by way of intervention were to deprive it of the status of a party to the main proceedings 28. A properly discriminating approach to the treatment of interveners as parties where to do so would genuinely assist the Court of Justice might be regarded as in accordance with the spirit of co-operation that must prevail as between the national court and the Court of Justice in preliminary ruling proceedings. It would also be in accordance with a proper understanding by the national court of the functions of the Court of Justice. 23 29. It is worth also being aware that courts in other jurisdictions, such as the Netherlands and Hungary, where there is not a tradition of third party interventions, have allowed UNHCR to intervene, and have, I understand, appreciated such interventions, in cases where a reference to the Court of Justice was a possibility. Ailsa Carmichael QC 24 November 2014 22 Rules 8 of the The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. See also Rule 9 of the Tribunal Procedure (Upper Tribunal) Rules 2008. 23 Football Association Premier League, at para 7: While the spirit of cooperation which must prevail in the exercise of the functions assigned by Article 267 TFEU to the national courts, on the one hand, and the Community judicature, on the other, requires the Court of Justice to have regard to the particular responsibilities of the national court, it implies at the same time that the national court, in the use which it makes of the possibilities offered by that provision, must have regard to the particular function entrusted to the Court in this field (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 20).