Intervener
Encyclopedia
In law, intervention is a procedure to allow a nonparty
, called intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for intervention is that a judgment in a particular case
may affect the rights of nonparties, who ideally should have the right to be heard.
proceedings, but can also appear at other types of legal proceeding such as a trial
.
In general, it is within the discretion of the court to allow or refuse an application to intervene. There are exceptions to this however (for example, under subrule 61(4) of the Rules of the Supreme Court of Canada
, if the court has stated a constitutional question then the attorney general of any province or territory, or of the federal government, may intervene "as of right", i.e. without the need to be granted leave to intervene).
Courts will tend to allow an application to intervene if the applicant will provide a different perspective on the issues before the court, without expanding those issues.
Intervenors are permitted in criminal matters as well as civil matters. However, courts sometimes express concern in allowing applications for intervention in criminal matters where the applicant will make arguments against the position of the accused. It sometimes is seen as unfair that the accused in a criminal matter be required to meet arguments from sources other than the prosecution.
There are several distinct reasons why someone might wish to intervene in a proceeding:
It is often said that the role of intervenors is to "assist" the court in making a just decision on the dispute at hand. While it is true that judges sometimes do indicate that intervenors have been of aid to the court in reaching a decision, the use of the word "assist" can be seen as misleading in that it implies the intervenor is acting altruistically. In general, the goal of the intervenor is to influence the court in making its decision, not just to "assist" the court.
Canadian courts use the term "amicus curiae
" in a more limited sense. Generally, in Canada, an amicus curiae is someone who has been specifically commissioned by the court to provide a viewpoint which the court believes is necessary and otherwise lacking. By contrast, an intervenor is someone who has applied to the court to be heard on a matter. For example, the Quebec Secession Reference
(a case in the Supreme Court of Canada) had one amicus curiae and several intervenors.
, intervention is governed by Rule 24 of the Federal Rules of Civil Procedure
.
Part (a) of Rule 24 governs intervention of right. A potential party (called the applicant) has the right to intervene in a case either (1) when a federal statute
explicitly confers upon the applicant an unconditional right to intervene or (2) when the applicant claims an interest relating to the property
or transaction which is the subject of the lawsuit
. In the second situation, in order to be admitted as an intervenor, the applicant must show that its ability to protect its interest would be impeded by disposition of the case and that its interest is not adequately represented by the current parties to the case.
Part (b) of Rule 24 governs what is called permissive intervention, which is subject to the discretion of the judge
hearing the case. An applicant may be permitted by the court to intervene (1) when a federal statute confers upon the applicant a conditional right to intervene or (2) when the applicant's claim or defense shares a common question of law or fact with the main action. Agents of the federal or state
government may be permitted by the court to intervene when a party to a case relies on a federal or state statute or executive order, or any regulation
promulgated thereunder, for its claim or defense.
In both intervention of right and permissive intervention, the applicant must make a timely application to be heard. The applicant cannot sit on its rights; it must intervene as soon as it has reason to know that its interest may be adversely affected by the outcome of the pending litigation. The applicant must serve
its motion
to intervene on the parties to the case and explain its reasons for intervening in the motion papers. In addition, U.S. federal law does not allow the procedure of intervention to violate the requirements of diversity jurisdiction
. The court must have either diversity jurisdiction or federal question jurisdiction
over the intervenor's claim; supplemental jurisdiction
is not permitted for intervention claims under (b).
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
, called intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for intervention is that a judgment in a particular case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
may affect the rights of nonparties, who ideally should have the right to be heard.
Canadian practice
Intervenors are most common in appellateAppeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
proceedings, but can also appear at other types of legal proceeding such as a trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
.
In general, it is within the discretion of the court to allow or refuse an application to intervene. There are exceptions to this however (for example, under subrule 61(4) of the Rules of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
, if the court has stated a constitutional question then the attorney general of any province or territory, or of the federal government, may intervene "as of right", i.e. without the need to be granted leave to intervene).
Courts will tend to allow an application to intervene if the applicant will provide a different perspective on the issues before the court, without expanding those issues.
Intervenors are permitted in criminal matters as well as civil matters. However, courts sometimes express concern in allowing applications for intervention in criminal matters where the applicant will make arguments against the position of the accused. It sometimes is seen as unfair that the accused in a criminal matter be required to meet arguments from sources other than the prosecution.
There are several distinct reasons why someone might wish to intervene in a proceeding:
- if the proposed intervenor is currently a litigant in a case with legal issues similar or identical to the case at hand;
- if the proposed intervenor represents a group of people who have a direct concern in the legal issues raised in a case (for example, if the case involves deportation of a particular individual, an application for leave to intervene might be made by an interest group for the rights of refugee claimants);
- if the proposed intervenor is concerned that the court's decision in a particular case might be so broad as to affect the proposed intervenor's interests; in other words it would be an intervention to ensure that the court's ruling does not have "accidental" unintended effects.
It is often said that the role of intervenors is to "assist" the court in making a just decision on the dispute at hand. While it is true that judges sometimes do indicate that intervenors have been of aid to the court in reaching a decision, the use of the word "assist" can be seen as misleading in that it implies the intervenor is acting altruistically. In general, the goal of the intervenor is to influence the court in making its decision, not just to "assist" the court.
Canadian courts use the term "amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
" in a more limited sense. Generally, in Canada, an amicus curiae is someone who has been specifically commissioned by the court to provide a viewpoint which the court believes is necessary and otherwise lacking. By contrast, an intervenor is someone who has applied to the court to be heard on a matter. For example, the Quebec Secession Reference
Reference re Secession of Quebec
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
(a case in the Supreme Court of Canada) had one amicus curiae and several intervenors.
External links
- Rules 55 to 59 of the Supreme Court of Canada
- Rule 8 of the Civil Procedure Rules - Nova Scotia
- Intervenors Before the Supreme Court of Canada, 1997-1999: A Content Analysis (M.A. Thesis by Amanda Jane Burgess)
- book review of Friends of the Court: The Privileging of Interest Group Litigants in Canada
- several publications by Ian Brodie on the subject of interveners at the Supreme Court of Canada
United States practice
In the United States federal courtsUnited States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, intervention is governed by Rule 24 of the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
.
Part (a) of Rule 24 governs intervention of right. A potential party (called the applicant) has the right to intervene in a case either (1) when a federal statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
explicitly confers upon the applicant an unconditional right to intervene or (2) when the applicant claims an interest relating to the property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
or transaction which is the subject of the lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
. In the second situation, in order to be admitted as an intervenor, the applicant must show that its ability to protect its interest would be impeded by disposition of the case and that its interest is not adequately represented by the current parties to the case.
Part (b) of Rule 24 governs what is called permissive intervention, which is subject to the discretion of the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
hearing the case. An applicant may be permitted by the court to intervene (1) when a federal statute confers upon the applicant a conditional right to intervene or (2) when the applicant's claim or defense shares a common question of law or fact with the main action. Agents of the federal or state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
government may be permitted by the court to intervene when a party to a case relies on a federal or state statute or executive order, or any regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
promulgated thereunder, for its claim or defense.
In both intervention of right and permissive intervention, the applicant must make a timely application to be heard. The applicant cannot sit on its rights; it must intervene as soon as it has reason to know that its interest may be adversely affected by the outcome of the pending litigation. The applicant must serve
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
its motion
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
to intervene on the parties to the case and explain its reasons for intervening in the motion papers. In addition, U.S. federal law does not allow the procedure of intervention to violate the requirements of diversity jurisdiction
Diversity jurisdiction
In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...
. The court must have either diversity jurisdiction or federal question jurisdiction
Federal question jurisdiction
Federal question jurisdiction is a term used in the United States law of civil procedure to refer to the situation in which a United States federal court has subject-matter jurisdiction to hear a civil case because the plaintiff has alleged a violation of the Constitution or law of the...
over the intervenor's claim; supplemental jurisdiction
Supplemental jurisdiction
Supplemental jurisdiction is the authority of United States federal courts to hear additional claims substantially related to the original claim even though the court would lack the subject-matter jurisdiction to hear the additional claims independently. is a codification of the Supreme Court's...
is not permitted for intervention claims under (b).