Jalil, R (On the Application Of) v Secretary of State for Justice

Permission to amend judicial review grounds to challenge a later decision may be granted where the challenge is arguable and amendment is just and necessary. Judicial review is flexible: existing proceedings may address an awaited decision where the issues substantially overlap. Withdrawal of an impugned decision does not necessarily make proceedings academic, particularly where the amended claim remains live or provides a gateway to other relief. The court should consider the overall justice of the case, including the need for urgent determination and proper candour by a public authority.

The claimant, a prisoner seeking return to open conditions, challenged successive decisions concerning his security categorisation. Earlier decisions had been withdrawn or quashed, and a June 2020 decision was withdrawn shortly before this hearing. The Secretary of State proposed a further independent categorisation review and sought dismissal or a stay.

The claimant sought permission to amend his consolidated grounds to challenge the July 2020 decision, relying principally on alleged unlawful reconsideration, improper purpose and conspicuous unfairness. The issues were whether the proposed challenge was arguable and whether the proceedings had become academic or should await the fresh review.

1. Permission to amend. Granting permission to challenge a subsequent decision is a case-management decision. It may be convenient to deal with the later decision within existing proceedings rather than require fresh proceedings: [2016] EWCA Civ 1111; [2017] 1 WLR 761. The proposed grounds were modest and the threshold of an arguable case, with a realistic prospect of success, was met.
2. The challenge to reconsideration under Ground 1 remained arguable because it raised whether the new circumstances were substantively capable of constituting a proper basis for review. Grounds alleging bad faith, improper purpose and conspicuous unfairness also remained arguable. An apparently independent later review would not necessarily cure a tainted decision to initiate that review.
3. Stay or dismissal. The proceedings were not academic once permission to amend had been granted. They also remained relevant because they provided a gateway to the damages and reasonable-adjustment issues. The withdrawal of the June decision did not require dismissal.
4. “Rolling judicial review” permits existing proceedings, in an appropriate case, to address an awaited decision: [2018] EWCA Civ 627 and [2018] EWCA Civ 2604; [2019] 1 WLR 1297. If the fresh review again resulted in Category C categorisation, its legality could be considered at the already listed hearing. The Secretary of State was expected to complete the review urgently, given the history of delay and disclosure failures.
5. Permission to amend and to apply for judicial review on Grounds 1 and 5(a) and (b) was granted. The application to dismiss or stay the proceedings was dismissed.

The judgment describes earlier procedural stages within the same judicial review:

• High Court (Administrative Court): earlier decisions were quashed by consent and directions for an expedited remedies hearing were made, including in [2020] EWHC 1151 (Admin).
• High Court (Administrative Court): permission was subsequently granted to challenge later categorisation decisions and the matter was listed for an expedited full hearing.
• High Court (Administrative Court): permission to amend and apply for judicial review was granted in the present judgment; dismissal or a stay was refused.