Thuo, R (on the application of) v Secretary of State for the Home Department

Leave to amend a judicial review claim may be granted at a late stage where refusing the amendment creates a real risk of injustice and the opposing party’s prejudice can be addressed by procedural directions, including an adjournment.

The court should consider the significance of the proposed amendments, the explanation for their lateness, the need for further evidence or parties, and whether the resulting prejudice can fairly be managed. Permission may include directions requiring amended pleadings, evidence, joinder of an interested party or defendant, and a revised hearing timetable.

The claimant sought permission to make substantial and late amendments to a judicial review claim. The proposed amendments included a claim for an order quashing an Immigration Judge’s determination and a claim for damages. The existing pleadings did not support the proposed quashing order, and the amendments were accepted to be incomplete.

The Secretary of State relied on prejudice arising from the need for further evidence, possible notification or joinder of the AIT, and medical evidence concerning the damages claim. The central issue was whether justice required permission to amend despite the lateness and procedural prejudice.

1. Permission granted. The claimant was given leave to amend the claim form in accordance with the matters identified in the claimant’s skeleton argument, with all supporting facts to be pleaded. The claimant was also permitted to add the AIT as a defendant.
2. The amendments were significant, late and incomplete. Nevertheless, refusing permission carried a risk that an injustice would be done by preventing the claimant from presenting the case in its necessary form.
3. The Secretary of State’s prejudice could be addressed by an adjournment and procedural directions. The claimant was required to file and serve the amended claim form within 21 days, any further evidence within 14 days, and the defendant was given six weeks for evidence. The AIT’s time for acknowledgment of service and summary grounds was extended to eight weeks.
4. The court briefly recorded the effect of R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445: judicial review should ordinarily not be entertained where the issue has been, or could have been, subject to statutory review under section 101 of the Nationality, Immigration and Asylum Act 2002. It also recognised the qualification identified in AM [2008] 1 WLR 2062, namely that intervention may remain appropriate where it is the only means of avoiding an otherwise unavoidable injustice. These observations were expressed subject to fuller consideration.
5. The case was listed for two days in the first available Michaelmas term date, if possible before Sir Thayne Forbes. The claimant was ordered to pay the defendant’s costs of the hearing and the costs occasioned by and arising out of the amendments, enforceable only with leave of the court.