R (SDR) v Bristol City Council

In judicial review proceedings brought with the support of a wider community, substitution of the claimant may be permitted where that association is apparent to the defendant and interested parties. Formal agency and representative-proceedings rules are not essential.

A fresh claim by a replacement claimant may also proceed out of time where it raises the same challenge on behalf of the same group and continuation would cause no greater prejudice than the original claim. A party’s discontinuance remains effective despite procedural irregularities that do not cause substantive invalidity.

Two applications concerned challenges to Bristol City Council’s decision to register only part of land at Ashton Vale as a town or village green. The first claim, brought anonymously by SDR, had received permission for judicial review. SDR then filed notices changing solicitor and discontinuing the claim.

A replacement claimant, later anonymised as ABC, sought substitution and issued substantially identical fresh proceedings. A Deputy High Court Judge ordered that the claims be joined. The Council applied to set that order aside, while ABC sought permission to proceed despite the delay. The issues were whether SDR’s discontinuance was effective and whether ABC’s claim could continue as, in substance, the same challenge.

1. Substitution. Where a claimant in judicial review is acting with the support of a wider associated group, another claimant may be substituted if that relationship is apparent to the defendant and interested parties. No particular formula is required. Formal agency concepts and the representative-proceedings provisions in Part 19 of the Civil Procedure Rules 1998 are not determinative. The reasoning in River Thames Society v FSS [2007] JPL 782 applied.
2. Discontinuance. SDR’s notices were effective. Defects concerning the address for service, the timing of service, and the form’s statement of compliance were irregularities only. Posting the notice was sufficient for the purposes of the service statement. The documents had in fact been filed, and the claim was effectively discontinued on 16 or 17 February 2012.
3. Fresh proceedings and delay. Although ABC’s claim was more than four months out of time, permission was granted. The claim raised the same challenge on behalf of the same group. The interested parties would be no worse off than if SDR’s proceedings had continued; the prejudice caused by the original proceedings was the legitimate consequence of exercising a right to challenge a public decision, and SDR’s withdrawal could not provide an uncovenanted windfall.
4. Evidence of improper pressure causing withdrawal would weigh very heavily in favour of allowing a replacement claim to continue, since a legitimate public-law challenge should not be defeated by such pressure. It was unnecessary to make a final finding on that issue.
5. The Deputy High Court Judge’s order joining the proceedings was set aside because the original claim had ended. Permission was granted to ABC in the fresh claim, with directions to give effect to its continuation in substance. An anonymity order was maintained because disclosure created a real risk of harassment or worse. No order for the costs of the hearing was made.

• High Court (Administrative Court): Collins J granted permission for judicial review in the original claim on 12 January 2012. HH Judge Thornton QC, sitting as a Deputy High Court Judge, joined the fresh proceedings to the original claim on 22 February 2012. Underhill J set that order aside, held that the original claim had been discontinued, and granted permission for the fresh claim to proceed.