[2025] EWCA Civ 1134

Before delivering the substantive judgment ([2025] EWHC 2183 (KB)) on 19 August, the judge gave a short oral ruling on the SSHD’s application to intervene (“the party-status judgment”). This court has an unapproved note of that unpublished judgment; it runs to 17 paragraphs over 5 pages.

The judge opened with a short background history of the SSHD’s limited engagement with the process prior to 15 August 2025. He identified the relevant provisions of CPR rule 19.2(2) (see below). He outlined the arguments of leading counsel for the SSHD, which had focused on the public interest considerations, and the SSHD’s statutory duty to accommodate asylum seekers. It was recorded that Somani supported the SSHD’s application but that the Council opposed it; there is little in the judgment which gives any indication as to the nature of the arguments which were raised in opposition to the application.

The judge characterised the principal application brought by the Council as a straightforward alleged breach of planning control ([12]-[13]). He identified Somani as the party alleged to have been in breach “… and not the SSHD”. It is clear ([14]) that the judge accepted that there was a public interest argument involved in undertaking the “balance of convenience” test on the grant of an injunction and identified this as “the public interest in housing destitute asylum seekers”; he added (materially in our view) that “[t]he debate was the weight to be accorded to [the public interest in housing asylum seekers] as against other matters”.

The judge continued:

“[15] In light of that, the joinder of the SSHD is not necessary and the Court can resolve all matters of dispute in the proceedings. Nor is there an issue which means it would be desirable to add the SSHD. It may be that the SSHD has evidence which would assist in making an assessment of the weight to be given in this case, but the fact that the SSHD can put in evidence does not bring the SSHD into the CPR gateways. It is open to the SSHD to provide [Somani] with evidence and it is open to the [Somani] to seek such evidence.”

Thus, having ruled that the SSHD could not satisfy the jurisdictional “gateway” test under rule 19.2(2)(a), the application for joinder failed.

However, the judge briefly then addressed how he would have exercised his discretion had he been in a position to do so. The final paragraph of his judgment reads as follows:

“[17] Even if [either of the gateways in rule 19.2(2)] were met and the SSHD was able to enter through one of the gateways, I would not exercise my discretion to admit her as a party. The SSHD had sufficient time to take steps to ensure that the material which she now wishes to put before the Court was before the Court on Friday [15 August 2025]. These steps were not taken and the consequence of the SSHD being drawn in would be loss of further court time. The impact of that is significant and relevant, because this disruption of time impacts the Court and other litigants. If this matter has to be relisted for a further hearing, time for other cases would have to be diverted. This disruption is not warranted. As elegantly as the case was put, the application will be refused.”

The SSHD sought permission from the judge to appeal his refusal of her application for intervener status. In refusing that permission, the judge said this:

“The application to join the [SSHD] was refused because neither of the [rule] 19.2(2) gateways was passed. The issues in the case were whether there had been a breach of planning control; whether a s187B injunction should be granted; and whether interim relief should be given. It was common ground that the public interest in housing asylum seekers was an important element in the balance of convenience. The question was as to the weight to be attached to it. There was no issue between the [SSHD] and [the Council]. Alternatively even if the gateways were passed I refused to join the [SSHD] in my discretion because of inaction on her part. I was not persuaded that the [SSHD] had a real prospect of showing that my conclusion on whether she had crossed the relevant gateways was wrong in the circumstances of the case. Even if she were able to do that she would still have to show that my alternative reason namely the exercise of my discretion was wrong in light of the history of the case and the stage at which the application was made.”