Camila Batmanghelidjh & Anor (R, on the application for) v Charity Commission for England and Wales

In judicial review proceedings, substitution of a claimant is governed by CPR 19.2(4)(b), where it is desirable to substitute the new party so that the court can resolve the matters in dispute. The proposed claimant must nevertheless have sufficient interest under section 31(3) of the Senior Courts Act 1981. Substitution also requires a sufficient identity of interest with the original claimant. Mere common interest is insufficient; the court must examine the qualitative connection between the original claimant, the claim and the proposed substitute, including whether the claim was brought for the benefit of a wider associated group. The circumstances relevant to desirability are not closed and must be assessed contextually. The existence of a better-placed claimant, delay, or administrative withdrawal of the challenged report is not necessarily decisive.

Camila Batmanghelidjh commenced judicial review proceedings challenging a Charity Commission report concerning the management of Keeping Kids Company. Permission was granted, but the claim was stayed after she became unwell. She died before the substantive hearing.

Michael-Karim Kerman, a former senior employee of the charity and a joint executor of her estate, applied to be substituted as claimant. The Charity Commission opposed substitution, arguing that he lacked sufficient interest, that there was insufficient identity of interest with the deceased claimant, and that the claim had become stale.

The central issues were the applicable power to substitute a claimant in public law proceedings, the standing and identity-of-interest requirements, and whether substitution was desirable in the circumstances.

1. Applicable power. The amendment made by regulation 12(2) of the Civil Procedure (Amendment) Rules 2023, removing the word “and” between CPR 19.2(4)(a) and (b), made the requirements alternatives. CPR 19.2(4) therefore applies to Part 54 claims. The court should use the express power, rather than rely on inherent jurisdiction, and the relevant question was whether substitution was desirable under CPR 19.2(4)(b). The earlier reasoning concerning public law substitution remained important guidance.
2. Standing. The power must be exercised consistently with the sufficient-interest requirement in section 31(3) of the Senior Courts Act 1981. A proposed substitute cannot use substitution to circumvent standing requirements. Standing is assessed in context and may require consideration of the whole impact of the challenged decision.
3. Identity of interest. Substitution in judicial review should not be ordered unless there is a sufficient identity of interest between the original claimant and the proposed substitute. Mere common interest is insufficient. The court must examine the nature and extent of the connection between the original claimant, the claim and the proposed substitute, including whether the claim was brought for the benefit of a wider associated group.
4. Application. Mr Kerman had sufficient interest as a former senior employee materially affected by the report’s criticism of the charity. The deceased claimant’s evidence showed that she sought vindication not only for herself but also for closely associated staff, establishing the required identity of interest. His position as executor and personal relationship with the deceased were not material. The existence of trustees who might have been better placed did not remove his standing.
5. The relevant circumstances bearing on desirability were not closed. The passage of time and the Commission’s administrative policy of marking the report withdrawn did not make substitution undesirable, particularly as the report remained publicly available and no specific prejudice was shown.
6. Order. The application for substitution was allowed.