Johnson, R (on the application of) v Secretary of State for Health & Anor

Substitution of a claimant under Civil Procedure Rules 1998 Part 19.2(4) requires the existing party’s interest or liability to have passed to the proposed substitute. General concern for an important public issue does not satisfy that condition.

The court may consider its wider case-management power under Part 3.1(2), but that power is a long-stop discretion. Relevant factors include the overriding objective, court resources, the availability of other potential claimants, and the apparent merits of the underlying claim. Strong and cogent circumstances are required before that power is used to bypass the specific substitution regime.

Mrs Irene Johnson sought judicial review of the refusal to amend the National Assistance (Assessment of Resources) Regulations 1992. She died while the proceedings were pending. Richard Bird, Chairman of the trustees of Age Concern South Lakeland, applied to be substituted as claimant so that the challenge could continue.

The application relied principally on Civil Procedure Rules 1998 Parts 19.2(4) and 3.1(2). Further applications concerned an additional Convention ground and protective costs. The central issue was whether the proposed substitute could properly take over the claim or should otherwise be permitted to continue it in the court’s case-management jurisdiction.

1. Substitution under Part 19.2(4). The proposed substitute could not satisfy the requirement that the existing party’s interest or liability had passed to the new party. On Mrs Johnson’s death, any interest in the proceedings passed to her executors after probate. There had been no assignment or transfer to Mr Bird. The application therefore failed under Part 19.2(4).
2. Residual case-management power. Part 19.2(4) was permissive and did not exclude reliance on another appropriate provision. Part 3.1(2)(m), read with the overriding objective, could in principle support an order managing the case and furthering the just, expeditious and fair resolution of proceedings. It was, however, a long-stop power. The specific and narrow conditions in Part 19.2(4) meant that very cogent circumstances would be required before using Part 3.1(2) to permit substitution on another basis.
3. Those circumstances were absent. The court considered that other affected persons might bring a similar claim, that the Administrative Court’s resources were under substantial pressure, and that the apparent merits of the proposed claim were weak. The court also had serious provisional doubts whether Mr Bird was a “victim” for the purposes of section 7 of the Human Rights Act and whether the proposed Convention claims could succeed.
4. The application to substitute Mr Bird was rejected. Since it was accepted that the remaining applications could not proceed if substitution failed, all applications were dismissed.