Gordon, R (On the Application Of) v National Probation Service & Anor

Where judicial review proceedings achieve their primary objective before determination, the claim may be withdrawn as academic. A proposed amendment to add damages should be refused where the existing grounds do not adequately identify the periods, defendants or legal basis of the alleged loss, particularly aggravated or exemplary damages. Any such damages claim remains open for separate proceedings. Where proceedings materially contribute to release from detention, the claimant may be successful for costs purposes even though the claim is withdrawn. The court may apportion costs between defendants where responsibility for the detention and the events delaying release cannot fairly be resolved at an interlocutory stage.

The claimant had remained in immigration detention after completing a criminal sentence. An immigration judge had granted bail subject to verification of his proposed address by the Probation Service. The National Probation Service subsequently approved release to that address, and the Secretary of State then confirmed that release would take place.

The claimant sought immediate release through judicial review. Once release was secured, he applied orally to amend the claim to include damages against both defendants. The issues were whether amendment should be permitted, whether the academic claim should be withdrawn or dismissed, and what costs order should follow.

1. Release and academic claim. The proceedings had achieved their primary and effective objective, namely the claimant’s immediate release from detention. The claim was therefore academic, and permission was granted for it to be withdrawn.
2. Proposed damages amendment. Permission to amend was refused. The existing grounds did not identify the periods for which damages were claimed against each defendant and did not raise any possible claim for aggravated or exemplary damages. A damages claim would require considerable amendment and redrafting. The court expressed no view on its merits.
3. Preservation of other claims. The refusal to amend did not determine or extinguish any claim for damages arising from alleged unlawful detention. Such claims remained available in proceedings issued in the appropriate court.
4. Costs. The claim had been successful in its objectives because the claimant’s release was achieved under the momentum of the proceedings. Although the court could not determine the underlying legality or responsibility of either defendant at that stage, the Secretary of State remained responsible for the continuation of detention, while the Probation Service’s position had affected release. The fair order was that each defendant pay one-half of the claimant’s costs, subject to detailed assessment if not agreed.

The judgment describes an earlier immigration judge’s bail order dated 14 June 2017. This was a first-instance judicial review decision in the Administrative Court. The claim was permitted to be withdrawn after the claimant’s release was secured.