The House of Lords has accepted government amendments to the Criminal Justice and Courts Bill about whether charities or other organisations that intervene in judicial review cases would have to pay other parties’ costs arising from their intervention.
MPs last week overturned amendments made in the Lords that would have given courts discretion about whether to make organisations that intervene in judicial review cases liable to pay the costs incurred by other parties as a result of their intervention. Such interveners are often charities.
MPs instead accepted amendments made by Chris Grayling, the justice secretary, which said that the burden of other parties’ costs would fall on an intervening organisation only if any of four new conditions were met.
The conditions included that the intervener’s evidence was not "of significant assistance to the court", that the evidence related to matters not sufficiently relevant to proceedings or that the intervener had behaved unreasonably.
Peers accepted the House of Commons amendments during a debate on Tuesday afternoon.
A counter-amendment introduced by the crossbench peer Lord Pannick, which would have reinserted the clause that would give courts discretion over costs associated with interventions, was rejected.
Melanie Carter, a partner at the law firm Bates Wells Braithwaite, said the current wording would deter charities from intervening in judicial review cases. She said it would be difficult to predict whether their intervention would be deemed as of significant assistance and leave them liable to pay other parties’ costs.
"These provisions will affect charities in particular," said Carter. "They are less likely than, say, government departments or private companies to be able to afford the financial risks associated with intervening.
"Given the cuts to legal aid, charities play a key role in representing the interests of the vulnerable, and their capacity to do so will be severely limited by these provisions."
Peers did introduce an amendment that would give courts the discretion to allow a judicial review even if it appeared highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
"This amendment will not have implications that are particular to charities, but has wider significance," said Carter. "It prevents the court from being bound to condone unlawful behaviour where another outcome could have been achieved had the decision being taken lawfully."