Livia Tossici-Bolt & Anor v Bournemouth, Christchurch and Poole Council

Judicial review proceedings are subject to ordinary procedural discipline. A claimant seeking to add a new ground after service must apply promptly for permission, provide proposed amended grounds, explain the need for the amendment and any delay, and serve the application on the defendant. The court may refuse a late amendment where the defendant has not had a fair opportunity to respond, particularly where the proposed issue is complex and requires evidence. A passing reference in factual background does not necessarily identify an essential ground of challenge. The claimant remains responsible for making proper inquiries before seeking permission. The defendant’s duty of candour does not arise in its full force where the issue has been given insufficient notice or detail.

The claimants challenged a Public Spaces Protection Order made by Bournemouth, Christchurch and Poole Council. After the substantive hearing, the second claimant applied for permission to add a ground alleging that the Order had not been made in accordance with the Council’s Constitution because it had been decided unilaterally by one councillor. The proposed ground had not been properly pleaded, and the application was made the day before the hearing. The first claimant’s revised skeleton argument also advanced constitutional arguments without seeking permission to amend. The court therefore had to determine whether the additional ground and related arguments should be admitted.

1. Application refused. The second claimant was refused permission to amend the judicial review claim. The court also refused to consider the related constitutional arguments advanced on behalf of the first claimant.
2. Judicial review claims are governed by procedural rules designed to ensure fairness, proper identification of issues and orderly production of evidence. Compliance is integral to the overriding objective and to the public interest in the fair and efficient disposal of public law claims. Public law proceedings are not exempt from ordinary procedural discipline. The court relied on the approach explained by the Divisional Court in AB v Chief Constable of Hampshire [2019] EWHC 3461 (Admin).
3. Under CPR Practice Direction 54A, a claimant wishing to rely on further grounds after service must apply promptly for permission. The application should include or be accompanied by draft amended grounds, evidence explaining the need for the amendment and any delay, and service on the defendant.
4. The original reference to the councillor’s authority appeared as a factual query in the background and was not pleaded as a ground. It did not give the Council sufficient notice that the constitutional issue was an essential issue requiring a response. The claimant had also failed to make timely inquiries or seek further information.
5. The late introduction of a new and complex ground, together with substantial constitutional submissions served the day before the hearing, prejudiced the Council by depriving it of a fair opportunity to respond. The fact that the issue might be relevant to other proceedings made orderly and timely presentation more important.