Hussain, R (on the application of) v The Secretary of State for Justice

Whether an existing judicial review claim may be amended to challenge a later decision is a fact-sensitive case management question governed by the overriding objective. Amendment will normally be appropriate where the authority replaces its decision after considering evidence filed with the claim. It may also be appropriate where predictably recurring decisions would otherwise make each challenge academic before it could be heard.

Although the High Court retains jurisdiction to compel a public authority to comply with a data subject access request, judicial review should ordinarily be refused because section 7(9) of the Data Protection Act 1998 provides a suitable statutory remedy. Judicial review will be appropriate only in rare and exceptional circumstances.

A Category A prisoner sought judicial review of an escape-risk classification and an alleged failure to disclose personal data. A later classification decision superseded the original decision. The claimant sought to amend his existing claim to challenge the later decision instead of issuing a new claim.

Ouseley J permitted the arguable challenge to proceed but required a fresh claim form. He also refused permission to pursue the data-protection complaint by judicial review because section 7(9) of the Data Protection Act 1998 supplied an alternative remedy. The claimant complied by issuing separate proceedings, and the judicial review claim was later settled. The appeal was therefore academic.

The Court of Appeal considered the proper case management approach to successive public-law decisions and whether a mandatory order enforcing a subject access request could appropriately be sought in judicial review proceedings.

1. Appeal dismissed. Sales LJ, with whom Simon and Gross LJJ agreed, held that the appeal concerning amendment was academic. The appeal concerning the data-protection claim also failed on its merits.

2. A decision whether to permit amendment of an existing judicial review claim to challenge a new decision is an ordinary case management decision. It is governed by the overriding objective in CPR Part 1.1. The court must balance practicality, fairness, proportionality, orderly pleading, compliance with time limits, notice to affected persons and the efficient use of hearing dates. Different judges may properly reach different conclusions in similar cases.

3. The guidance in R v Secretary of State for the Home Department, ex p Turgut remains sound for its particular class of case. Where a public authority makes a second adverse decision after considering evidence accompanying the claim, it will generally be convenient to substitute that decision. A properly arguable challenge to it should normally be introduced by amendment.

4. A neutral, fact-specific starting point applies where decisions recur predictably and each new decision will make the preceding challenge academic before it can be heard. Amendment and re-amendment may provide effective access to the court without repeated expedition applications. Relevant considerations include whether expedition might otherwise be justified and whether the risk of wasting a reserved hearing date is low. Amendment must not be used merely to reserve a hearing slot and jump the queue. Ouseley J's starting point had been somewhat over-rigid, although his practical order was sensible.

5. An order under section 7(9) of the Data Protection Act 1998 is a distinct statutory remedy available in the High Court or county court. It is neither a mandatory order required to be sought by judicial review under CPR Part 54.2 nor an order available within judicial review proceedings under CPR Part 54.3.

6. The High Court nevertheless retains its public-law jurisdiction to compel a public authority to perform its duty under section 7. Section 7(9) does not abrogate that jurisdiction. Its exercise will, however, be appropriate only in rare and exceptional cases because Parliament has provided a suitable alternative remedy. The separate statutory remedy cannot ordinarily be added to obtain evidence for another judicial review challenge or to bolster an independently sustainable procedural-fairness claim.

1. Court of Appeal (Civil Division): The court dismissed the academic appeal. It gave procedural guidance on amendment and upheld the refusal of permission for the data-protection claim: [2016] EWCA Civ 1111.
2. Administrative Court: Ouseley J held that a proposed reasons challenge was arguable but required the claimant to issue a fresh judicial review claim. He refused permission to pursue the alleged breach of the Data Protection Act 1998 by judicial review because section 7(9) provided a suitable alternative remedy.
3. Administrative Court: Warby J had earlier refused permission on the papers, finding that the data-protection allegations added nothing to the classification challenge and that an adequate statutory remedy existed.