Emblin & Ors, R (On the Application Of) v Revenue And Customs

Permission to amend a judicial review claim may be refused where the proposed ground is advanced late and has no reasonable prospect of success. The court applies the ordinary principles governing late amendments in public law proceedings. A very heavy burden rests on the applicant where the amendment could have been raised earlier and the litigation has substantially concluded.

Where an internal policy states that human-intelligence sources must not be asked to find out further information, its ordinary meaning is that they must not be asked to seek information not already in their possession. Accepting information already held by the source does not engage that restriction.

The claimants had brought judicial review proceedings against HM Revenue and Customs. During the hearing, the court requested guidance concerning HMRC’s treatment of whistle-blowers and human-intelligence sources. After further evidence was filed, the claimants sought to amend their grounds to allege that HMRC had departed from its internal guidance without proportionate justification.

The court had already dismissed the substantive judicial review claim. It therefore considered whether the proposed amendment should be permitted, addressing lateness, prospects of success and the application of amendment principles in public law proceedings. The court also ruled on costs.

1. Application to amend. The application was dismissed. The guidance had been produced only because the court requested it. The claimants had not previously sought disclosure of relevant policy documents, and the proposed ground could have been raised earlier. The ordinary rule therefore applied: at this late stage the claimants bore a very heavy burden in seeking permission to amend.
2. The court accepted that amendment principles apply in public law proceedings. It also concluded that the proposed ground had no reasonable prospect of success. Even assuming that the guidance was capable of applying to Mr Hunt as a human-intelligence source, the instruction not to ask such a source to find out further information bore its ordinary meaning. It prohibited asking the source to seek information which was not already in the source’s possession.
3. On the facts found in the main judgment, HMRC had merely accepted information already possessed and offered by Mr Hunt. It had not asked him to find out further information. The guidance therefore did not arguably apply to the conduct relied on. That conclusion independently justified refusal of the amendment.
4. Even if the proposed ground had an arguable prospect of success, the amendment would still have been refused because it was too late. The interests of finality prevailed after the claimants had had their opportunity to present the case.
5. Costs. The claimants were ordered to pay HMRC’s costs of the amendment application, subject to detailed assessment if not agreed. HMRC was the successful party in the main judicial review, but recovery was discounted by 10 per cent because HMRC had belatedly returned documents covered by legal professional privilege. The court declined to impose a larger reduction merely because some defensive points had not succeeded where HMRC had succeeded in the litigation overall. Permission to appeal was refused, but the time for seeking permission was extended to 28 days.