Al-Sweady & Ors, R (on the application of) v Secretary of State for Defence

An individual may not be added as a claimant without written consent filed with the court. That requirement is jurisdictional and cannot be overcome by the merits or public importance of the proposed claim. An application for judicial review must also be made promptly and within the applicable time limit. Extensions depend on the statutory and procedural criteria, including prejudice and the explanation for delay. Where late joinder would cause substantial investigative prejudice and disrupt the proportionate and expeditious resolution of related claims, an extension should be refused.

The six claimants sought judicial review concerning alleged mistreatment, unlawful detention and failures to investigate events following their capture by British forces in Iraq. Ibrahim Gattan Hassan applied shortly before the substantive hearing to be added as a seventh claimant and to have his related claim heard with the existing claims.

The proposed claim raised alleged mistreatment and failure to provide adequate medical treatment. The defendant opposed joinder because the applicant’s written consent had not been filed, the claim was substantially out of time, and late joinder would cause serious prejudice. The court determined whether the applicant could be joined in the existing proceedings.

1. The application was refused. The court rejected the application to add Ibrahim Gattan Hassan as a claimant in the present proceedings.
2. Under CPR 19.4(4), a person may not be added as a claimant unless that person gives written consent and the consent is filed with the court. The requirement was not satisfied. The court therefore had no jurisdiction to hear the joinder application, regardless of the proposed claim’s assumed merits or public importance. Paragraph 2.1 of the Part 19 Practice Direction imposed the same requirement.
3. The proposed claim was also substantially out of time. CPR 54.5(1) required a judicial review claim to be filed promptly and no later than three months after the grounds first arose. Section 7(5) of the Human Rights Act 1998 required the claim to be brought within one year, subject to an equitable extension and any stricter procedural time limit.
4. The court considered the extension powers under CPR Part 3.1(2)(a) and section 7(5)(b) of the Human Rights Act 1998. It accepted evidence that late joinder would require extensive investigation of witnesses, policy documents and medical evidence. The resulting prejudice to the Secretary of State was substantial. The applicant gave no cogent explanation for the delay and had had earlier opportunities to seek joinder.
5. It would also be inconsistent with the overriding objective in CPR Part 1 1.1 to separate the related claims and require a further substantive hearing. The absence of written consent was independently fatal, and the limitation and case-management considerations provided additional reasons for refusing the application.

Not stated in the judgment.