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

A very late amendment to judicial review grounds may be refused where it gives inadequate notice, raises factual issues requiring investigation, and cannot fairly be dealt with without an adjournment. The court must balance the applicant’s wish to amend against procedural fairness to the opposing party. Where the applicant opposes an adjournment that would be required to cure the prejudice caused by the late amendment, refusal of permission may be the fair result.

The claimant applied to re-amend amended detailed grounds in judicial review proceedings concerning the lawfulness of her detention. The proposed amendment raised a new issue concerning the completion and legal significance of an IS 91 detention authorisation. It was made only in court on the day of the application, shortly before the substantive hearing, and the defendant had not received adequate notice. The court considered whether the amendment could fairly be admitted without an adjournment.

1. The application to re-amend the amended detailed statement of grounds was refused.
2. The proposed ground was not adequately foreshadowed by the claimant’s earlier skeleton argument and did not give the defendant clear and fair notice of the new issue.
3. The amendment depended on a factual question concerning whether the relevant IS 91 form had been completed. The documents indicated that a completed form might exist, while the document produced in court appeared incomplete and unsigned. Further investigation and potentially witness evidence would therefore be required.
4. Allowing the amendment would have required an adjournment so that the defendant could investigate and respond fairly. The claimant opposed an adjournment. In those circumstances, given the extreme lateness of the application and the resulting unfairness, the fair result was to refuse permission for the amendment.