Law Society of England and Wales, R (on the application of) v The Lord Chancellor and Secretary of State for Justice

In judicial review proceedings, amendments should be permitted where they are arguable, closely connected with the existing claim, and necessary to enable the real dispute to be determined, particularly where the new matters derive from the defendant’s evidence or disclosure. Procedural delay remains relevant, but should not defeat an amendment where there is no unfairness and the interests of justice and the public interest favour determination on the merits.

Specific disclosure may be ordered where it is necessary for the fair and just disposal of the issues. Where a defendant positively relies on the effectiveness of monitoring or intervention arrangements, disclosure may properly extend beyond proof that such arrangements exist to material bearing on their operation and effectiveness. Proportionality and practical safeguards, including confidentiality arrangements, remain important.

The Law Society brought judicial review proceedings concerning the Lord Chancellor’s response of 30 November 2022 to the Independent Review of Criminal Legal Aid. The claim challenged the failure to implement recommendations concerning intervention in areas of unmet need and remuneration.

Before the substantive hearing, the Law Society applied to amend its grounds, admit further witness evidence, and obtain specific disclosure. The proposed amendments included further evidence of risks to access to justice, absence of sustainability modelling or other evidence-based analysis, and an alleged breach of the Tameside duty of legally sufficient enquiry. The disclosure sought material concerning monitoring reports and local consultations in Barnstaple and Skegness.

Application granted in its entirety. Permission to amend was granted, the contested evidence was admitted, and specific disclosure was ordered. Costs were reserved.

1. Amendments. The court applied the approach in R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin). The amendments were made within the applicable procedural timetable, had a clear legal, factual and evidential nexus with the existing claim, and raised arguable issues. They would allow the real dispute to be adjudicated, consistently with R (P) v Essex County Council [2004] EWHC 2027 (Admin).
2. The absence of sustainability modelling, together with the alleged absence of other evidence-based analysis, was sufficiently connected to the pleaded challenge to the remuneration decision. The proposed Tameside ground was also sufficiently linked to the existing access-to-justice ground. Its derivative character was explicable by reference to the defendant’s evidence and disclosure, consistent with R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board [2004] EWHC 1447 (Admin). The amendments were arguable and caused no unfairness.
3. Evidence. Research evidence was sufficiently responsive to the defendant’s evidence and disclosure and was interwoven with the new Tameside ground. A witness statement consisting partly of themed commentary and observation was not excluded where its exhibits and introduction were not challenged, and where relevance and weight could properly be considered at the substantive hearing. The approach in Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) and R (The Good Law Project Ltd) v Minister for the Cabinet Office [2021] EWHC 2091 (TCC) supported that conclusion.
4. Disclosure. The applicable test was whether disclosure was necessary for the just and fair disposal of the judicial review issues, as stated in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650. A reference to documents in a witness statement does not automatically create a disclosure right or duty, as explained in R (Sustainable Development Capital LLP) v Secretary of State for BEIS [2017] EWHC 771 (Admin). Proportionality also had to be considered, consistently with Mehan v Commissioners for HM Revenue & Customs [2015] EWHC 2569 (Admin).
5. The defendant relied positively on monitoring and local intervention arrangements as effective safeguards. Disclosure was therefore relevant not merely to their existence, but to their architecture and effectiveness, including comparison between problems identified and solutions adopted. Disclosure was necessary to place the claimant in an informed position, and could be provided speedily within an agreed confidentiality ring without imperilling the imminent substantive hearing.

First-instance case-management decision in judicial review proceedings. The substantive claim was due to be heard by a Divisional Court; no decision on its merits was made in this judgment.