Public interest interventions in judicial review cases
5 October 2012
The Scotch Whisky Association and others are challenging the competence of the Alcohol (Minimum Pricing) (Scotland) Act 2012 in a petition for judicial review in the Court of Session.
Lord Hodge has made a ground breaking order in the petition by granting an alcohol charity, Alcohol Focus Scotland, leave to intervene in writing in the public interest. He also fixed liability for legal expense occasioned by the intervention in advance, on the basis that there will be no expenses due to or by either party ( CSOH 156).
His order followed the first contested application to intervene under the public interest intervention provisions in RCS 58.8A in Scotland. Although RCS 58.8A has been in place since 2000, it has almost never been used (the only known use of it appears to be the First Minister for Wales intervening in writing, unopposed, at first instance in Axa). This contrasts with the position in the Supreme Court where interventions are relatively common. The rationale for public interest interventions in judicial review cases is that third party participation can enhance judicial decision making by ensuring relevant viewpoints other than the parties to the action are before the judge. Third party intervention recognises that public law cases may have implications beyond the parties themselves, and that they are about public accountability rather than private dispute. So the aim of RCS 58.8A is to advance the interests of justice by facilitating third party participation. Lord Hodge’s decision indicates a willingness on the part of the Court of Session to allow interventions that are relevant and assist the court.
Lord Hodge was willing to make a protective expenses order, providing in advance that the intervention is on the basis that parties will bear their own expenses occasioned by the intervention. Legal expense is likely to have been a significant factor in the paucity of public interest interventions in the Court of Session. In particular, the risk of having to bear parties’ costs as well as the intervener’s costs is one many potential interveners cannot afford to take. Lord Hodge’s decision not only enabled Alcohol Focus Scotland to intervene, but will be of comfort to charities and NGOs seeking to intervene in public interest cases in the future.
Anna Poole QC acted for Alcohol Focus Scotland, Morag Ross for the petitioners, and Alastair Duncan QC for the Scottish Ministers.
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