Bancoult, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

Permission to amend a judicial review claim should be granted where the proposed ground is arguable and can fairly be addressed without undue prejudice, even if the point is raised late. At an interlocutory stage, the court should avoid determining difficult questions which properly belong to the substantive hearing. Evidence may be admitted where it directly supports an arguable ground, but refused where it would create substantial additional work and has no present practical utility. Non-party disclosure requires documents likely to support the applicant’s case or adversely affect another party’s case, and disclosure must be necessary for fair disposal or to save costs.

The claimant challenged the Secretary of State’s decision to establish a Marine Protected Area around the British Indian Ocean Territory, including a total prohibition on commercial fishing. He sought permission to re-amend the claim to add grounds concerning Chagossian fishing rights and obligations under Article 198 TFEU. He also sought permission to rely on further evidence and an order under CPR 31.17 for disclosure by a non-party consultant.

The court determined whether the proposed amendments and evidence were arguable, procedurally fair and capable of being addressed at the substantive hearing, and whether the statutory conditions for non-party disclosure were met.

1. Article 198 TFEU. The proposed challenge under Article 198 was not immediately persuasive, but it was not so obviously misconceived that permission should be refused. The Administrative Court was an appropriate forum because the provision was relied on as a ground of challenge to the MPA decision, rather than as a free-standing challenge to a European Commission decision. Questions concerning individual rights under the Treaty were part of the substantive argument and should not be finally determined on the amendment application. The point was not an abuse of process, was not independently out of time, and caused no demonstrated prejudice. Permission to add the ground was therefore granted.

2. Fishing rights. The proposed ground concerning traditional or historical fishing rights raised arguable questions about the alleged 1965 undertaking to Mauritius, the relevance of those matters to consultation, and the adequacy of the consultation. Possible issues of international law and justiciability were not insuperable at this stage. Whether those issues could properly be adjudicated, and what consequences they had, were matters for the substantive hearing. Permission was granted, although fairness required the listed hearing to be vacated.

3. Further evidence. Evidence relating to the proposed fishing-rights ground was admitted. A review challenging the science underlying the resettlement feasibility study was refused because it could not presently assist the substantive challenge and would generate unnecessary evidence and expense. It could be reconsidered if the court later contemplated quashing the MPA decision but was faced with an argument that relief would serve no useful purpose.

4. Non-party disclosure. The conditions in Senior Courts Act 1981, section 34 and Civil Procedure Rules 1998, rule 31.17 were satisfied. The specified documents were likely to support the claim and disclosure was necessary for fair disposal or to save costs. An order was made, subject to Haskoning’s right to apply to set it aside if it had not received notice.

5. The substantive hearing was vacated and the case was directed to be re-listed for the New Year with a four-to-five-day estimate. Costs were reserved between the parties.

First-instance interlocutory judgment in judicial review proceedings. The substantive hearing was adjourned and re-listed.