WHO IS BEFORE THE COURT?
The high courts we have been looking at mainly hear appeals from lower courts. These courts may be courts of appeal with national scope, such as the Federal Court of Appeal in Canada that hears most matters relating to the federal government’s use of its powers. Others may be more geographically based, as is the case for the UK Supreme Court, which hears appeals from courts in England, Wales, Northern Ireland, and to some extent Scotland. When hearing appeals, then, high court judges will be reacting to how other judges have viewed the case. Not all decisions of high courts, however, are on appeals. Some high courts are also the first court to hear certain cases. For example, the Israeli Supreme Court is the first court to hear administrative law matters, and the Indian Supreme Court the first court to address cases involving certain fundamental rights and disputes between the federal and state governments.
Perhaps not surprisingly, individuals appear most as parties before high courts, with the exception of the United States. Figure 7-4 shows the percentage of cases involving the different groupings of parties. Individuals quite starkly lead the pack as appellants in all countries, with businesses also bringing a high percentage of appeals. Government’s involvement is most prominent as a respondent in high court cases, responding to appeals more than any other party. Individuals and businesses also respond but in general to a much lesser extent. Overall, individuals play a particularly active role in India where they make up the largest percentage of appellants and act as respondents to a greater extent than in the other countries.
As we saw, judges hear not only from the direct litigants but from other parties who want to intervene in the appeal. The various high courts tolerate interveners to very different degrees. In the United States, the Court is extremely lenient in allowing third parties to intervene. It allows for “essentially unlimited
Figure 7-4 Percentage of cases of different parties as appellant and respondent, 1970 to the early 2000s. Individuals by far appealed the most whereas governments were most often the respondents. These percentages were based on the number of decisions with at least one of the particular type of appellant or respondent for all countries. source: HCJD.
amicus participation.” A private party such as an individual or business seeking to intervene must obtain the agreement of the parties to the appeal. If those parties refuse, it may ask the Court for permission to join in. In practice, the
Court almost always gives permission.8 The solicitor general and certain other government representatives do not need permission to intervene in an appeal.9 Figure 7-2 shows that the result of the lenient approach has been a striking growth in interventions.10
For the high courts in Canada,11 the uK,12 India,13 Israel,14 and Australia,15 a party seeking to intervene in an appeal must go straight to the Court for permission. In general the party must identify its position on a relevant issue, and set out why it would be helpful to the Court to allow the party to
- 8. See Rules of the Supreme Court of the United States (2010), Rule 37(b), online: http://www. supremecourt.gov/ctrules/2010RulesoftheCourt.pdf. See also Collins, supra note 7 at 42.
- 9. The solicitor general on behalf of the federal government, by an authorized representative of an agency of the united States, by an attorney general on behalf of a state, or by an authorized law officer on behalf of a city or smaller entity do not need permission to file an amicus brief.
- 10. The South African Constitutional Court and Supreme Court have very similar rules to the united States, with the intervener needing to seek permission of the parties first, and if that is refused, permission of the chief justice. See Rules of the Constitutional Court (S Afr) 2003, Rule 10; Rules of the Supreme Court of Appeal (S Afr) 1998, Rule 16. In one of the first cases before the South African Constitutional Court, deciding the constitutionality of the death penalty, the president of the Court, Chaskalson J., took the initiative to invite a variety of potential interveners on each side of the issue to participate in the case. George Williams, “The Amicus Curiae and Intervener in the High Court of Australia: A Comparative Analysis” (2000) 28 Federal Law Review 365 at 374 [Williams, “Amicus Curiae”].
- 11. Rules of the Supreme Court of Canada, SOR/2002-156 [Rules of the SCC] (states that “any person interested in an application for leave to appeal or a reference may make a motion for intervention to a judge”, r 55). under Rules of the SCC, supra note 11, r 57(2), a motion for intervention must identify the intervener’s position with respect to the issue, and set out the submissions and the reasons for believing they will be useful. Justice Sopinka softened the test for intervention by declaring that any interest would be sufficient to satisfy the test: Reference re Workers’ Compensation Act, 1983 (Nfld.)  2 SCR 335.
- 12. Rules of the SCC, supra note 11 (dealing with intervention during a petition to appeal, states that “any person and in particular (a) any official body or non-governmental organization seeking to make submissions in the public interest or (b) any person with an interest in proceedings by way of judicial review may make written submissions to the Court in support of an application for permission to appeal” at r 15(1)). In similar terms, Rules of the SCC, supra note 11, r 26(1) allows for intervention during an appeal as well.
- 13. Code of Civil Procedure 1908, Order I, Rule 8A, Supreme Court of India [Civil Procedure India].
- 14. Israel’s intervention procedures arise from case law: Israel Doron & Manal Totry-Jubran, “Too Little, Too Late? An American Amici in an Israeli Court” (2005) 19 Temp. International & Comp LJ 105 at 112-114 [Doron & Totry-Jubran].
- 15. High Court Rules 2004 (Cth), r 44.04. New Zealand is similar. Intervention at the New Zealand High Court is not codified, but Clark argues the Court’s power to allow intervention would stem from “the inherent jurisdiction of a court to request assistance in its deliberations intervene. Some courts have an explicit test that must be met, such as the Supreme Court of India where the Court must be satisfied that “it is necessary in the public interest to allow” the party to state its opinions.16
As Figure 7-2 shows, despite these similarities in the rules, interveners take part at very different rates across the high courts. The Supreme Court of Canada grants leave to intervene very frequently, and “interveners have been active at an unprecedented level”17 Similarly, interventions rose in the 1990s in the uK, but rates are still much lower than in Canada and the united States.18 In Australia, the rates of interventions also rose, with Justice Kenny noting that interveners are rare, but should be allowed in cases where they have “more than mere intellectual or emotional concern”19 The Indian Supreme Court, on the other hand, had very low rates of interventions.
-  Chris Hanretty, “Lumpers and Splitters on the United Kingdom Supreme Court” (2013)American Political Science Association 2013 Annual Meeting Paper, at 4 [Hanretty, “Lumpersand Splitters”], the exception being certain criminal appeals from Scotland.
-  Yoav Dotan, “Do the ‘Haves’ Still Come Out Ahead? Resource Inequalities in IdeologicalCourts: The Case of the Israeli High Court of Justice” (1999) 33:4 Law & Society Review 1059at 1061 [Dotan, “Resource Inequalities”]. For India, see The Constitution of India 1950, art. 131.
-  The Spaeth database, supra note 3, does not provide comparable information. Instead it provides the type of the primary party listed (as opposed to the number of each type of partywhether or not listed first). If we use the Spaeth database for the United States and look atthe percentage of cases where each type of party is first listed, we obviously find lower percentages: of appellants, individuals make up 28.9 percent, business 14.6 percent, government 38.8 percent, and private non-profits 1 percent whereas of respondents, individuals comprise 34.8 percent, business 13.5 percent, government 33.1 percent, and private non-profits 1.5 percent.
-  Paul M. Collins, Jr, Friends of the Supreme Court: Interest Groups and Judicial DecisionMaking (№w York: Oxford university Press, 2008) at 45 [Collins].