Section 87: Interveners and costs
647.Section 87 establishes two presumptions regarding the costs liability of those who voluntarily apply for and are granted permission to intervene in a judicial review. First that they will pay their own costs unless there are exceptional circumstances that make it inappropriate for them to do so. Secondly, that, on the application of a party, where one or more of four specified conditions is met, the court must order the intervener to pay the reasonable costs incurred by that party as a result of the intervention, unless there are exceptional circumstances which make this inappropriate. This applies to judicial review proceedings in the High Court and the Court of Appeal.
648.Subsection (1) states that this section applies in judicial review proceedings where a person who is not a “relevant party” to the judicial review (an ‘intervener’) has been granted permission by the court to either provide evidence or make submissions on the case. The effect is that the section only applies where an intervener applies to the court, since a person or body invited by the court to intervene is not granted permission, and is accordingly not in the same position.
649.Subsection (3) and (4) stipulate that a court cannot order a relevant party to the judicial review to pay any costs the intervener incurs unless the court considers there are exceptional circumstances.
650.Subsection (5) stipulates that, on application by a “relevant party” (see subsections (10) and (11)) where the court is satisfied that one or more of the four conditions in subsection (6) has been met during a stage of the proceedings that the court deals with, it must order an intervener to pay any additional costs incurred by that “relevant party” as a result of the intervention during that stage of the proceedings.
651.Subsection (6) sets out what the four conditions are:
the intervener has acted, in substance, as the sole or principal party - for example, where the intervener drives the judicial review taking on the proper role of one of the parties;
the intervener’s evidence and representations to the court, taken as a whole, have not been of significant assistance to the court - for example, where some of the points the intervener makes are helpful but on the whole the evidence and representations are not helpful;
a significant part of the intervener’s evidence and representations relates to matters that it is not necessary for the court to consider in order to determine the issues in the case - for example, where the intervener uses a significant portion of the time in court to make arguments not related to the issues in the case; and
the intervener has behaved unreasonably - for example, where the intervener makes overlong, unnecessary submissions which extend the time taken for the hearing.
652.Subsection (7) stipulates that a court does not have to make an order under subsection (5) if it considers there are exceptional circumstances which would make this inappropriate.
653.Subsection (8) explains that in deciding whether there are exceptional circumstances where an intervener should have their costs paid, or should not pay costs (as set out in subsections (4) and (7)), the court must have regard to criteria set out in rules of court.
654.Subsection (9) defines the types of proceedings which are ‘judicial review proceedings’ for the purpose of this section. This includes an application for leave to appeal to the Court of Appeal and proceedings on appeal in the Court of Appeal.
655.Subsection (10) defines a relevant party as the applicant or defendant or, on an appeal from a judicial review decision, the appellant or respondent, or any other person directly affected by the judicial review who has been served with the application for judicial review or leave to apply for judicial review.
656.Subsection (11) provides that if a person who is an intervener in judicial review proceedings subsequently becomes a “relevant party”, then they are treated for the purposes of subsections (3) and (5) as if they had at all times been a “relevant party” rather than an intervener. This means that, if an intervener becomes a “relevant party”, the presumptions in the clause about the costs liability of interveners will not apply to them.
