Malik, R (on the application of) v Waltham Forest NHS Primary Care Trust

Permission to amend a judicial review claim is discretionary. The court will generally require the respondent to receive the period of notice prescribed by the rules and will approach late amendments cautiously, particularly where they introduce substantially different grounds. An amendment may nevertheless be allowed where the proposed grounds are arguable and important. Any procedural prejudice should be addressed by an adjournment or other case-management order. Where the adjournment is caused by the claimant’s late amendment, the claimant may be ordered to pay the resulting costs.

The claimant challenged proceedings by which the defendant Primary Care Trust had considered and suspended him from practice. The proceedings were transferred from the Queen’s Bench Division to the Administrative Court and had originally pleaded procedural unfairness.

The claimant sought permission to add claims concerning damages for breach of Article 6 of the European Convention on Human Rights, irrationality in the Wednesbury sense, and the handling of patient records. The application was made on six days’ notice, although seven days’ notice was required. The issues before the court were whether the amendments should be permitted, whether the judicial review should be adjourned, and who should bear the resulting costs.

1. The application to amend was granted. Although the amendments were substantially different from the original grounds and had been served late, each appeared arguable and the Article 6 issue was important. The claimant should not be prevented from raising potentially good claims merely because the claim form had previously been formulated more narrowly.

2. The court’s discretion to permit amendment had to be exercised consistently with procedural fairness. The defendant was entitled to proper time to consider the new claims, evidence and their wider consequences. The appropriate protection was an adjournment rather than refusal of permission.

3. The judicial review was adjourned until after the defendant’s further suspension hearing, and in reality probably until the next sittings of the Administrative Court. Either party could apply to expedite the matter if significant urgency arose.

4. The claimant was ordered to pay the costs of and incidental to the amendment and the costs of the day’s hearing, subject to detailed assessment. No interim payment on account was ordered.

Not an appeal. The judgment concerned an interlocutory application in judicial review proceedings which had previously been transferred from the Queen’s Bench Division to the Administrative Court.