The Development of Strategic Litigation in Scotland – 24 Nov 14
A Judicial Perspective on Strategic Litigation
1. Introduction
1. I must begin by congratulating all those who by their efforts have devised and brought
about this seminar. For my part, I have to confess that I am on rather unfamiliar ground. The
phrase “strategic litigation” was a new one to me until Jonathan Mitchell and Claudia Bennett
told me a bit about it. In my experience strategic litigation is not something that the judges
think about. It was certainly not the subject of daily conversation around our lunch table in
the Supreme Court. Forward planning of the kind you have in mind is not the judges’
responsibility. Their part in it, if they have one, is that of reaction – reaction to the demands
that it makes on them, not the promotion of the idea. Having been now introduced to it,
however, I hope that I may be able to contribute some thoughts that you might like to bear in
mind as today’s discussion develops.
2. Perhaps the most fundamental point is that strategic interest litigation is in the public
interest. And in sharp contrast to litigation about private rights, public interest litigation
extends to issues that are of interest to the public at large, or at least to a section of it. Issues
about planning developments, discrimination and equality law and human rights can, of
course, be raised by individuals in a variety of contexts, so long as they can demonstrate that
they have a title and interest to do so in the sense that is required of litigation about private
rights. But issues falling within branches of the law such as those often have far-reaching
effects which are of wider interest, and it is typical of those who wish to promote that interest
that they cannot show that they have a title to sue in the sense required for private litigation.
Many NGOs, of which the EHRC is just one example, have a special interest in promoting a
better understanding of these issues and, where appropriate, bringing them to the attention of
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the courts. So too do some public-spirited individuals who cannot be dismissed as mere
busybodies. The discussion today should involve them too.
3. The courts in England, including the UK Supreme Court in London, are familiar with their
activities, whether they consist of interest groups or individuals, and in my experience have
no inhibitions in providing them an opportunity to make their views known. As a result, as
everyone here knows, their involvement in the court process has been going on for much
longer and is much more frequent than it is here in Scotland. The question is whether we in
are doing enough to facilitate and encourage a similar movement in this jurisdiction, and how
the process should be best handled.
4. I have been asked to provide you with a judicial perspective on this issue. I have to
confess to wondering whether I am best placed to speak about this to a Scottish audience. I
have not sat here as a judge since 1996, which is a long time ago. Inevitably I have no feel
for how things are in the Court of Session today. Many of you are much better placed to
reflect on that than I am. I am also rather nervous about drawing attention to how things are
done south of the Border, lest I be thought to be trespassing on what is the preserve of the
judges here, whose jurisdiction this undoubtedly is. I am not here to preach to the judges.
But what I can do is preach to you, the practitioners. To a very large extent it is up to you to
bring the issues before the court. The judges cannot do that. Their activities are demand led.
Unless an issue is brought before them by someone who is entitled to do so, they cannot deal
with it.
5. I can recall my frustration during my time as Lord President in the early 1990s, years
before the enactment of the Human Rights Act in 1998, at the difference in attitude north and
south of the Border to the European Convention on Human Rights. Our decision in Kaur v
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Lord Advocate1 that it was not permissible in Scotland to look to the European Convention on
Human Rights as an aid to the construction of a statute because it was not part of our
domestic law had become increasingly embarrassing in view of developments in England
following Ex Parte Brind.2 But no-one had thought to challenge it in our courts, and without
such a challenge or at least being given an opportunity to review the point, there was nothing
I could do about it. It was not until I had drawn attention to this in a lecture somewhere that
counsel at last provided me with the opportunity. It was in July 1996, in the rather unlikely
context of an appeal in an application by a gay man for authority to adopt a severely
handicapped child3. Counsel for the curator ad litem to the child said that, if we were unclear
about the meaning of the legislation, we should have regard to the Convention as an aid to its
construction. So I was able to say that the time had come for Kaur to be expressly departed
from.
6. I was less successful in my attempt, after I had moved to south of the Border, to change the
test for what in England is called standing in public interest litigation in Scotland. My
attention had been drawn to the contrast between a case in England, where a group of women
which called itself Justice for Women had brought an application for judicial review of the
Home Secretary’s decision to permit the notorious rapist Mike Tyson to enter the UK in May
2000 to engage in a boxing match in Manchester4, and an application for judicial of the same
decision in the Court of Session in view of Tyson’s intention engage in another boxing match
in Glasgow which was brought by the Rape Crisis Centre here5. Both applications were
refused, but on quite different grounds. In England there was no issue about the applicants’
standing. The application was refused on the ground that there were no seriously arguable
1
1981 SLT 322.
R v Secretary of State for the Home Department, ex p Brind [1991]1 AC 696.
3
T, Petitioner 1997 SLT 724.
4
R v Secretary of State for the Home Department, ex p Bindel, 17 January 2000, unreported.
5
Rape Crisis Centre v Secretary of State for the Home Department [2000] GWD 25-946.
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grounds for interfering with the decision of the Home Secretary. In Scotland the petition was
dismissed simply on the ground that the petitioners lacked title to sue.
7. Then I was asked to give a lecture in November of that year to the Administrative Law Bar
Association in London. In search of subject, I decided to address the difference between the
two jurisdictions in a lecture which I called “Mike Tyson comes to Glasgow – a Question of
Standing”6. I said that it was unsatisfactory that there should be a difference as to standing
between England and Scotland in public law cases, bearing in mind that pressures on matter
of public interest such as objections to the growing of GM crops and to the use of picketing
were to be found on both sides of the Border. An approach which applied the private law test
to issues of public law was at risk of being out of touch with the public interest in matters
about which a section of the public had a genuine grievance. Mike Tyson’s visit to Glasgow
which women against rape found so objectionable turned out to be a ridiculous contest, as it
lasted for only 38 seconds before it was stopped by the referee after Tyson had felled his
opponent with a knock-out punch. But I thought that it might after all have done some good
if it had revealed that the Scottish approach to standing in judicial review was itself in need of
review by the judges as soon as possible. I said that if that did not happen, litigants would be
advised to go to England wherever possible to obtain their remedy or that they had no access
to the co. That was not good for the rule of law, it being better that the issues which they
seek to raise should be examined and resolved in the courts wherever possible.
8. I had hoped that what said might be noted and acted upon here. But there was no sign that
what I said has been noticed here, or that anything had happened to relax the existing rule.
Indeed in AXA v Lord Advocate7 a number of individuals who had actions of damages
pending or in immediate contemplation sought to be made parties to the proceedings which
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7
[2001] Public Law 294.
2012 SC (UKSC) 122; see paras 53-64 and 155-175.
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the insurance companies had brought to challenge the Damages (Asbestos-related
Conditions) (Scotland) Act 2009. The Lord Ordinary’s decision to permit them to intervene
was reversed in the Inner House on the ground that the discretion to do so under the relevant
rule8, which required the persons concerned to show that they were directly affected by the
issue raised, was constrained by what it described as the substantive law on title and interest.
The appeal to the Supreme Court gave us an opportunity to move things on. Lord Reed and I
were agreed that the time had indeed come for it to be recognised that the private law rule
that title and interest has to be shown has no place in applications that lie in the field of public
law. As Lord Reed put it, one of the responsibilities of the courts is to ensure the continuing
development of the supervisory jurisdiction to as to meet the needs of the time, and that the
continuing influence of the title and interest rule was having a damaging effect on the
development of public law in Scotland.
That terminology was inappropriate, he said9, and
the courts should cease to use it in relation to such applications. They should refer instead to
standing, based upon a sufficient interest.
9. I do not know how many cases have been brought since that decision relying on the wider
view of standing to which we referred in the Supreme Court. If the number is too small, the
fault for this does not, any more at least, lie with the judges. We in the Supreme Court have
done our best to change the system. It really is up to you make use of it, and to make the
opportunities for doing so more widely known. That, I sense, is what this symposium is all
about.
2. Judicial Perspective: individuals
10. What then is the judicial perspective that I can contribute to that process? I think that, to
start with, I should tell you something about the way we approached public interest litigation
8
9
Rules of the Court of Session 1994, rule 58.8(2).
AXA, para 171.
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in the Supreme Court. Of course, one would expect that by the time a case has reached that
court all issues about an applicant’s standing will have been resolved. So I cannot recall a
case where that was a live issue for us. Three examples in the field of environmental law are
worth mentioning to illustrate the kinds of situations where unchallenged public interest
proceedings have been brought in the name of individuals.
(i) Berkeley v Secretary of State for the Environment, which was heard by the House of Lords
in June 200010, was about a proposal to redevelop Fulham Football Club’s football ground at
Craven Cottage on the banks of the River Thames between the bridges at Hammersmith and
Putney, to create a riverside walkway which would encroach slightly into the river and to
carry out some remodelling of a retaining wall. The applicant, Dido Berkeley, lived in a
house near the site. She had studied ecology and was concerned about the effect of the
development on the diversity of species in the river. That was regarded as a sufficient
interest in her case. There was a public inquiry and the Secretary of State, having received
the inspector’s report, granted permission for the project. Lady Berkeley had attended the
inquiry and submitted a written statement, but her objection was rejected. She applied for the
grant of planning permission to be quashed because no environmental impact statement had
been undertaken. She had no success in the lower courts but took her case to the House of
Lords, obtained leave to appeal and won her case there.
(ii) Edwards v Secretary of State for the Environment was a case about a large cement works
situated to the northwest of Rugby, close to the West Coast railway line. In 2001 the cement
company applied for a permit for changes to the operation of the cement works which
included a proposal to replace some of the fuel for the plant with shredded rubber tyres. At
first blush, a proposal to burn shredded tyres to provide fuel for a cement plant sounds highly
10
[2001] 2 AC 503.
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objectionable. It is not altogether surprising, then, that members of the public who lived in
Rugby took exception to it, although most of them were not directly affected. An application
was made on environmental grounds for judicial review of the Agency’s decision to issue a
permit to the company. The proceedings were brought in the name of Mr David Edwards, a
local resident. When he withdrew in the Court of Appeal, another local resident who had
been a leading light in the public campaign against the proposals, agreed to put her name to
the proceedings. The application failed, but not on the ground that they lacked standing. The
fact that the local resident had no economic interest in the outcome did, however, affect the
approach that the court took to the amount of the protection against costs to which she was
entitled under the Aarhus Convention as those who do have such an interest can be expected
to bear a greater share of the costs11.
(iii) In R (Garner) v Elmbridge Borough Council12 the application was by an architect who
had a long standing interest in the conservation of historic buildings. He had objected to the
granting of planning permission for the redevelopment of Hampton Court Station and of
other land on the opposite bank of the Thames from Hampton Court Palace. He applied for
judicial review and he also applied for a protective costs order. The judge refused to make
the order. But his decision was reversed in the Court of Appeal, where the question was
whether that issue should be decided by reference to the ability of an ordinary member of the
public to meet the liability, or by reference to the means of the particular client. A protective
costs order was granted. Here again these was no issue about the applicant’s standing,
although he was not in any way directly affected by the proposed development.
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12
R (Edwards) v Secretary of State for the Environment (No 2) [2013] UKSC 78, [2014] 1 WLR 55, para 28(ii).
[2010] EWCA Civ 1006, [2011] 3 All ER 418.
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11. Lastly, on the topic of the standing required of applicants I should mention Walton v
Scottish Ministers13with which, of course, you will be familiar. This was a statutory appeal
by a person aggrieved under the Roads (Scotland) Act 1984. The Extra Division criticised
Mr Walton on the ground that he had not placed any material before the court to show that
the development to which he objected would prejudice his interests or affect his property and
made it clear that, if it had been necessary for them to do so, they would have held that he
was not a person aggrieved within the meaning of the statute. Lord Reed said that a wider
interpretation to the phrase “person aggrieved” was necessary, and that it was enough that he
had demonstrated a genuine concern about the legality of a development that was bound to
have a significant impact on the environment14. Drawing on my own experience of a local
planning inquiry when objecting on environmental grounds to a wind farm close to my
cottage in Perthshire, I said that an osprey which I had been observing, whose route to and
from its favourite fishing loch was at risk of being made much more dangerous by the
presence of 16 turbines on our neighbour’s hillside, had no means of taking that step on its
own behalf. If its interests were to be protected, someone had to be allowed to speak up on
its behalf.15 The same could be said of a whole variety of wild creatures whose cause, for one
reason or another, the usual NGOs such as the RSPB or the SWT are not willing to take up.
Environmental law proceeds, after all, on the basis that the environment is of interest to
everyone.
3. Interveners
12. Then there are the interveners. I have already referred to the prospective litigants in the
AXA case, quite a narrow group of individuals as there were just eight of them, who were
seeking to be permitted by joined as parties to the proceedings. For the most part those who
13
[2013] UKSC 44, 2013 SC (UKSC) 67.
Ibid, para 86.
15
Ibid, para 152.
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have been given permission to intervene by the House of Lords or the UK Supreme Court
have been bodies who seek to intervene in the public interest, such as Liberty, JUSTICE and
Amnesty International, whose oral intervention with seven others was particularly prominent
in the third of the three Pinochet cases16, and so on. The rule about standing here is the same
as it is for the applicant who seeks judicial review. The question in each case is simply
whether the applicant, or the intervener as the case may be, has a sufficient interest in the
matter which the court is being asked to examine. This is a broadly based test, which did not
in my experience give rise to any difficulty. In practice their standing to apply has hardly
ever been questioned.
13. But it by no means follows that the applications are always granted. They go before a
panel of three Justices, and the Justices need to be persuaded that something would be gained
by allowing the intervention. The parties to the appeal are given an opportunity to object.
When the applications are intimated to the parties they are asked whether they are willing to
consent to the intervention. The parties’ consent if given is, of course, as factor to be taken
into account and it will usually carry a lot of weight. The objections, if there are any, are
almost always on practical grounds, such as that the timetable for oral submissions by the
parties does not leave enough room for the intervener to make oral submissions too.
14. Consideration is always given to the question whether the intervention will be of benefit
to the argument. It is on grounds such as that this has not been demonstrated that permission
to intervene is not infrequently refused. The main criterion for an intervention is whether the
would-be intervener, through its expertise or access to information that it is best placed to
provide, would be likely to be able to assist the court in understanding either the legal issues
in question or the factual basis for a given line of argument.
16
See Reg v Bow Street Metropolitan Stipendiary Magistrate (Ex parte Pinochet Ugarte) [2000] 1 AC 61; Reg v
Bow Street Metropolitan Stipendiary Magistrate (Ex parte Pinochet Ugarte) (No 3) [2000] 1 AC 147.
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15. The point that interveners must have something useful to say, and not the routine
response of body wanting to draw attention to itself, or use up its annual budget, was
emphasised by Lord Hoffmann in E v Chief Constable of the Royal Ulster Constabulary in
200817. Permission to intervene had been given to the Northern Ireland Human Rights
Commission and they duly appeared through their counsel and made submissions orally as
well as in writing.
Lord Hoffmann was not impressed by the use they made of this
opportunity:
“2. …. 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 would otherwise obtain. The House is grateful to such
bodies for their help.
3. An intervention is 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 the
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 of behalf of the NIHRC only repeated in more emphatic terms the
points which had already been quite adequately argued by counsel for the appellant.
In future, I hope that interveners will avoid unnecessarily taking up the time of the
House in this way.”
17
[2008] UKHL 66, [2009] AC 536, paras 2 and 3.
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16. Consideration is also always given as to whether there would be time for an intervention
to be made orally, given the fact that the time required for the hearing has already been
established after taking account of what the parties themselves have asked for. In that event,
permission to intervene may be given on the condition that this is to be in writing only, as
was done in the Pinochet in the case of an application to intervene by Human Rights Watch.
So the Justices are normally faced with three choices: refuse permission; give permission for
an intervention in writing only; or to give permission for an intervention both in writing and
orally, subject to a time limit of, say, 15 or 30 minutes. Where a written intervention is
permitted a limit is usually set of no more than 20 pages.
17. As to what benefit the court derives from the interventions, these vary from case to case.
Much will depend on the ability of the intervener to put before the court relevant information
that it would not get from the parties themselves. Some public interest groups are better at
this than others. JUSTICE, for example, seeks to intervene in cases that are likely to have a
functional impact on the effective and fair operation of the justice system as a whole, where it
believes that its expertise may assist the court. They set themselves quite a high standard.
18. I paid tribute to a helpful written intervention by JUSTICE in the Supreme Court in the
troublesome case of Cadder18. JUSTICE had provided us with a list of cases decided by the
Strasbourg Court which showed that the decision in Salduz19 had been repeatedly and
consistently followed in subsequent cases. This was a point of some importance in that
controversial case.
I cannot recall any case where one of JUSTICE’s applications to
intervene has been turned down, although I can recall many cases where written interventions
only by it were allowed. As in the case of JUSTICE, most public interest groups have access
to a wider information base than the parties themselves can be expected to have access to.
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19
Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC) 13, paras 47-49.
Salduz v Turkey (2009) 49 EHRR 19.
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Access to that information can be very helpful to an appeal court, bearing in mind the
responsibility that it has to serve the needs of the wider public as well as those of the
individual litigants. As Lady Hale put in a recent lecture20, the most frequent interveners are
those bodies whose commitment is usually to a principle rather than a person. That tends to
give them a wider perspective of the issues that are involved.
4. Some more warnings
19. I have already mentioned Lord Hoffmann’s protest in the case of E. The judges here, I
am sure, would agree with him that interventions are a waste of time if they have nothing to
add. One bad apple can disadvantage those others who do have something to add. It is not
too difficult for the judges to regard a prospective intervener as a nuisance, and to refuse to
have anything to do with it.
I recall Lord Rodger looking at the name of a frequent
intervener’s counsel on the last page of the application, and declaring “We do not want yet
another lecture from him!” Interventions should never be regarded as a routine. The cases
where permission should be sought need to be carefully chosen, and the applications need to
be justified.
20. Judges who are prepared to examine the application on its merits, as I hope they will be,
will want to have regard to the effect on the parties as well as on the court’s timetable. From
time to time what may seem to be a modest intervention needs to be responded to. If it is of
that kind, this will add to the time and cost of the appeal. So the test of whether the
intervener has something new and useful to say is not just to avoid the court being bored by
it. The parties have a very real interest too, and any objections they may make will be taken
seriously. The usual practice in the Supreme Court is for interveners to bear their own costs
and they are not usually required to pay any part of the parties’ costs. But an intervener who
20
“Who Guards the Guardians?” given in October 2013.
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does give rise to a party’s need to incur substantial costs to reply to an intervention that was
put on a mistaken basis may not escape so lightly.
21. You should also be aware that interventions have attracted the attention of the UK
government in its attack on the use of judicial review in England and Wales. It has been
repeatedly emphasised by those who seek to resist government restrictions that interventions
by third parties are always under the control of the court. They are under the control of the
court as to whether they are allowed at all, and on what grounds and with what consequences
as to costs or expenses. They are allowed only because the courts find them helpful, and that
is what interventions normally do. But the government is seeking in the Criminal Justice and
Courts Bill currently before Parliament to impose a requirement that interveners must always
pay the costs incurred by their intervention in any court below the UK Supreme Court unless
the circumstances are exceptional. The provision to that effect was removed from the Bill in
the House of Lords by a substantial majority, but the government has the opportunity to
restore it to the Bill in the House of Commons which, by convention, has the last word. If the
measure is eventually insisted on, it will have a dramatic effect on the use of this facility by a
wide range of bodies whose interventions have been of real benefit to the public interest in
the past. The judges, I am sure, will regret that. If intervention are of value the opportunity
to intervene should not be left to when, if at all, the case reaches the Supreme Court
22. So, while I am all for a greater use of the practice of public interest interventions, you
must be careful not to abuse the system. It is not just the attitude of the court that needs to be
watched. The Scottish Government too may not be too happy if it finds that developments
that it wishes to see take place are being held up by applications for judicial review, and that
cases in which it is involved are complicated and made more expensive by interventions. As
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we know, we now have a three month time limit here21 – an idea that presumably was
borrowed from England but was, as I understand it, opposed by virtually everyone who gave
evidence at the relevant committee. In the past we have benefitted from the absence of a
precise time limit22. Now that precise time limits are set, we may find that the new period 6
weeks for certain kinds of planning reviews recently introduced in England 23 may be adopted
here too.
23. There is a nice balance to be struck if strategic litigation is to prosper in Scotland. It is to
be found by being careful that you really do have something to say before you apply to leave
to intervene and, if you are allowed to do so, by being as succinct and as economical as
possible. You must get your priorities right too – as to when it is really worth intervening,
and when it is better not to do so. In my experience, if an intervener had a useful point to
make, the judges were not slow to pick it up – usually at the stage of reading through the
printed cases before the hearing began, so that we were ready for it when it came to a brief
submission during the oral argument. And you need to be aware that the government will be
watching you and that, if they think that our system is operating against what they judge to be
in the public interest, they may follow the English example to make the use of the jurisdiction
much more difficult.
24. I hope that these remarks will of some help to you in making progress in this very
important area of practice.
David Hope
24 November 2014
21
Courts (Reform) (Scotland) Act 2014, section 85.
Eg Air 2000 v Secretary of State for Transport 1998 SLT 698 and Air 2000 v Secretary of State for Transport
(No 2) 1990 SLT 335 re Prestwick Airport.
23
See Rules of the Superior Courts, RSC 54.5(5).
22
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