Nolan v Parole Board & Anor

Permission to amend a judicial review claim to add damages should be granted only where the proposed claim has more than a fanciful prospect of success and would provide an effective remedy. Lateness alone is not decisive, but the court may refuse an amendment where its legal basis is unformulated, the prospects are poor, and it would cause substantial public expense. A Parole Board recommendation to release a prisoner from recall does not, without evidence that the Board considered the prisoner’s extended sentence, amount to a direction under section 247 of the Criminal Justice Act 2003.

The claimant sought judicial review of the Parole Board’s refusal on 29 January 2009 to direct or recommend his release and a mandatory order requiring the Secretary of State to release him. The Parole Board subsequently conceded that its decision was unlawful. By the hearing, however, the claimant had been released, so the original public law remedies could serve no practical purpose.

The claimant sought permission to amend the claim to add damages claims for false imprisonment and breaches of Article 5 of the European Convention on Human Rights. The central issues were whether the proposed amendments had a realistic prospect of success and whether the Parole Board’s October 2008 decision had directed release from the extended sentence.

1. Original claim. The claimant had been released by the time of the hearing. Quashing the January decision or ordering the Secretary of State to release him would therefore serve no useful purpose. The Parole Board accepted that its decision was unlawful, so the claimant succeeded against it on the original claim, although no substantive relief was granted. The claim against the Secretary of State failed as formulated.
2. Amendment test. Despite its lateness, the amendment would not be refused solely on that ground. Permission depended on whether the proposed claims had more than a fanciful chance of success and, if successful, would provide an effective remedy. The proposed damages claims did not satisfy that threshold.
3. Section 247. The claimant was serving an extended sentence and had served half of the appropriate custodial term. However, the evidence showed no realistic prospect that the Parole Board’s decision of 20 October 2008 had directed release under section 247. The decision concerned release following recall, while the question of release from the later sentence was referred for a further hearing. The claimant therefore had no realistic damages claim against the Secretary of State based on detention after 27 October 2008.
4. The proposed Article 5 damages claim following 29 January 2009 was not properly formulated. The proposed false imprisonment claim faced the further difficulty that it was a private law tort claim within proceedings concerned with public law wrongs, and appeared to add little to the proposed Convention claim. The amendment was refused in the interests of justice and consistently with the overriding objective, particularly given the poor prospects and likely public expense.
5. There was no order as to costs between the claimant and the Secretary of State. The Parole Board was ordered to pay the claimant’s costs up to and including the date on which it filed and served its second acknowledgement of service, subject to standard taxation and a legal aid taxation direction.