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In this post, Ned Beale, partner with Hausfeld, reflects on a recent panel event focusing on interventions in UK Supreme Court appeals, which was held as part of the London International Disputes Week for 2021.  Ned chaired the panel for this event, which also featured Lord Hoffmann, Lisa Webb (Senior Lawyer, Which? – an experienced intervener) and Philip Shepherd QC, who appears before the UK Supreme Court regularly.

Interventions before the UK Supreme Court are often thought of as a special feature of the many important public law matters the Court hears.  Over the last ten years however, a new trend has emerged: that of interventions by interested bodies in private, commercial law matters.

The idea for this event, which featured as part of the London International Disputes Week 2021, came about after my own personal experience of acting for such an intervener, the All Party Parliamentary Group on Fair Business Banking.  I am not alone: in 2020, out of the 53 judgments handed down by the UK Supreme Court, 30% had such interventions.  Interestingly, however, this percentage rises when one considers only commercial law matters: last year, 40% of the commercial law cases heard by the UK Supreme Court featured interventions.  Remarkably, it now seems more likely that parties will encounter interventions in a private, commercial law appeal, compared to those litigating in the public law sphere.

This event was designed to consider and discuss how such interventions can influence appellate decision-making and how interveners can most effectively maximise their impact.

  • Do interventions make for better law?

Lord Hoffmann was of the view that interventions do assist the UK Supreme Court: in his view, they bring something new and unique to appellate decision-making, offering a perspective which might not otherwise be afforded by the parties themselves.  Reflecting on the value interventions brought to his decision-making while a member of the Appellate Committee of the House of Lords (the predecessor to the UK Supreme Court), he saw their primary purpose as information sharing, rather than legal argument.  He therefore considered that written interventions were likely to be just as effective as oral submissions.   Lord Hoffman cited the intervention of trade body the BioIndustry Association in Human Genome Sciences Inc v Eli Lilly and Company [2011] UKSC 51 as an example of a particularly effective intervention.

Considering whether the role of the intervener is one of advocate or information supplier, Philip Shepherd QC noted that most modern interventions will focus on the law, rather than the application of facts to that law, which is primarily the domain of the parties to advocate.  He reflected upon the role the interveners played in the appeal heard in November 2020 in the matter of Pakistan International Airline Corp (Respondent) v Times Travel (UK) Ltd UKSC 2019/0142, in which judgment is awaited.  From small acorns to big trees grow: what was initially a purely domestic, commercial law case morphed into an appeal with geo-political significance, with interventions on the law of economic duress on a magnitude and scale doubtless not initially foreseen by the parties themselves.

Which? is now an experienced intervener in UK Supreme Court matters.  Lisa Webb, Senior Lawyer with Which?, shared her insight into how Which? strategically selects appeals to intervene in, taking into account its charitable objective: to benefit consumers.  The Which? approach to intervention is inherently for a wider public purpose: to protect and provide voice for consumers in decisions which could adversely affect their rights.  Lisa explained that Which? perceives its role to be of assistance to the Court, in considering the consumer perspective.  Which? will only intervene where it considers it can offer its experience and expertise to assist the UK Supreme Court, particularly using its statistical data on consumer benefit/detriment.  Lisa explained that great time and care is taken by Which? to ensure that its interventions are useful and impactful, and that the same objectives cannot be achieved via another route.

  • Do interventions help the parties?

The panel were agreed that interveners must inherently provide some benefit to the UK Supreme Court, otherwise why would they be allowed and why would their number be growing in private, commercial law matters.

That said, the panel recognised that interventions were perhaps not always welcomed by the parties themselves.

Not only might an intervention result in additional costs for the parties, but further human resources are required to deal with them, particularly if media interest in the appeal is high.  An intervention is another voice (whether written or oral) in what is already a high-stakes situation for parties.  Nervousness around what the intervener may say, and whether their submissions will be supportive (or not) of a particular outcome a party desires in their appeal, will naturally be present.  Whilst parties have the option to consent to an intervention, this might not always be given for these reasons.  This results in an oddity where permission is then given by the UK Supreme Court to intervene, suggesting that the Court is keen to hear from a particular intervention and derives benefit from it, whilst this enthusiasm is not matched by the parties to the appeal themselves.

  • Practical tips for impactful interventions

The panel offered insight into how interveners might best achieve impact.  Their advice was as follows:

  1. They must “bring something new to the table”: as Lord Hoffmann put it, providing a perspective not otherwise available to the Court. It is even better if that perspective is a neutral one.
  2. Clarity and brevity are key: interveners have limited time to make their points, so ought not to waste that time simply rehearsing what has already been said. Focused submissions are likely to be more impactful and helpful for the Court.  If the intervention is not clear, and is not expressed as economically as possible, it does all parties to the appeal a great disservice, given the additional costs any intervention entails for them.
  3. The role of written submissions: while the panel recognised that interveners often wish their “day in court” with the making of oral submissions, the benefit of good written submissions cannot be overstated. Their message was: be prepared to be flexible on this.  Interventions can often be made in writing and to just as much effect for the Court.
  4. Establish your credentials: the panel considered that articulating a wider public interest is key as an intervener. Whilst interventions from purely private commercial parties do happen, the reception from the Court is likely to be enhanced where a true public interest can be articulated.  The panel felt Which? does this to great effect, with their perspective on matters of consumer interest described by Philip Shepherd QC as “often hard to resist”.
  • Interventions seem here to stay

For the panel, the genie is now out of the bottle: it is no longer remarkable to see interventions in UK Supreme Court appeals, even now in private, commercial law appeals.  Interventions are felt to play a useful part in the resources made available to appellant decision-makers, even if the parties do not always welcome them.

In our adversarial system, the advocates contesting the appeal must now resist not only their opponent, but perhaps also now an entirely different and fresh perspective in an intervention.  As Philip Shepherd QC put it, everyone likes interventions, so long as they are on their side.