New costs rules could deter interventions – Justice

By Monidipa Fouzder » New statutory rules on costs could deter charities and other bodies from intervening in cases in the public interest, human rights organisation Justice has warned.

In a foreword to a Justice report, To Assist the Court, former Supreme Court president Lord Phillips of Worth Matravers 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 guidance in Justice’s report, 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 says ‘clear guidance’ is needed to ensure the rules ‘only bite upon abusive behaviour in practice’, or ‘otherwise responsible interveners… will be unduly deterred.’

The report recommends the drafting of a new practice direction on the conduct of an intervention, which would reflect ‘detailed’ guidance provided by the Supreme Court in its ‘Rules of The Court’.

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 organisations could be granted a waiver of fees in the public interest.

[Courtesy: The Law Society Gazette]