Hussain, R (on the application of) v The Secretary of State for Justice

This is an appeal from a decision of Ouseley J sitting in the Administrative Court dealing with the question of whether permission should be granted to the appellant to bring judicial review proceedings and in relation to certain case management matters. The appellant was dissatisfied with aspects of the decision and now appeals to this court with permission granted by Lewison LJ, on the footing that the case gives rise to important procedural issues which should be considered by the full court. Although as I explain below these proceedings are wholly academic, we decided to hear argument on the two grounds of appeal which are put forward. It hardly needs stating that it will be a very rare case indeed in which this court will entertain appeals on academic questions relating to case management decisions.

The appellant is a Category A prisoner convicted in September 2009 of conspiracy to murder in respect of his substantial involvement in a conspiracy to bring down airliners using explosive devices. He was sentenced to imprisonment for life with a minimum term of 32 years. He has been placed in Category A because of the danger he would pose if he were at large.

The appellant has also been classified as a high escape risk prisoner within Category A. This is the middle escape risk classification for Category A prisoners. It involved additional restrictions in the way the appellant was managed in prison, including certain restrictions on association with other prisoners. He wished to challenge that classification.

The respondent has conducted regular reviews of the appellant’s escape risk classification every six months or so. In a decision of 5 November 2013 the respondent concluded that the high escape risk classification should be maintained.

The appellant had made a data subject access request pursuant to his rights under the Data Protection Act 1998 (“the 1998 Act”) on 16 August 2012 to the Prison Service’s Data Access and Compliance Unit (“DACU”) for personal data relating to him held by the respondent. He hoped by these means to obtain information relevant to his escape risk classification. In October 2012 DACU provided copies of personal data relating to the appellant, but the appellant was dissatisfied with the disclosure given. Further requests for disclosure were made to DACU thereafter, including on 22 April 2014, but no further disclosure was made.

On 4 February 2014 the appellant issued a claim for judicial review to challenge the escape risk classification decision of 5 November 2013 and what was described as a “continuing failure to supply information sought under the Data Protection Act 1998”. The escape risk classification decision was challenged on grounds of an alleged want of fairness in relation to the amount of information provided to the appellant to allow him to make representations before the decision was taken. The relief sought was, among other things, a quashing order in respect of the decision of 5 November 2013 and a mandatory order “requiring compliance with the 1998 Act within 14 days”.

The respondent filed an acknowledgement of service and summary grounds of resistance. In relation to the claim in respect of the 1998 Act, the respondent maintained that the appellant had an adequate alternative remedy.

On 25 June 2014 Warby J refused the appellant permission to apply for judicial review on the papers. In his reasons he wrote that the allegations of breach of the 1998 Act did not add to the judicial review claim in relation to the escape risk classification decision and that there was an adequate alternative remedy under the 1998 Act. On 4 July 2014 the appellant issued a notice seeking an oral permission hearing. Due to pressure on the Administrative Court, the renewed oral application for permission was not listed to be heard until November 2014. The appellant did not request an expedited hearing.

Meanwhile, in a further escape risk classification decision of 22 July 2014, the respondent decided that the appellant should remain classified as a high escape risk. This decision superseded the decision of 5 November 2013. The decision of 22 July 2014 was made under a revised procedure, under which the appellant was provided in advance with the gist of the prison, police and other intelligence reports relevant to the decision and given an opportunity to comment on them and make representations. The appellant, through his solicitors, did make representations. He was not happy with the decision of 22 July 2014 and wished to challenge its lawfulness.

The appellant did not issue a fresh judicial review claim in respect of the decision of 22 July 2014. Instead, on 29 October 2014 the claimant issued an application to amend his grounds of claim in the extant proceedings to challenge the decision of 22 July 2014. This was more than three months after the decision. The proposed grounds of challenge in the amended claim were of a lack of fairness because (it was said) the respondent had in making his decision relied on information, additional to the gist reports, which had not been provided to the appellant; failure to give adequate reasons for rejecting the representations made; and, again, a complaint regarding failure to provide information pursuant to the 1998 Act, this time in response to the request of 22 April 2014. The appellant effectively let his challenge to the decision of 5 November 2013 drop, as it had now been superseded and it was academic whether it was lawful or not.

The appellant’s application for permission to amend was heard by Ouseley J on 10 November 2014 at the hearing of his renewed oral application for permission to apply for judicial review in the extant proceedings. The respondent confirmed that no information additional to the gist reports provided to the appellant had been relied upon for the purposes of the 22 July 2014 decision, and the judge therefore declined to grant permission for the challenge based on lack of fairness. The judge held that the appellant’s proposed reasons challenge was arguable and gave permission for him to apply for judicial review. However, the judge refused the appellant permission to amend his existing claim form to bring his new claim and instead required him to issue a fresh claim form – albeit with the benefit of the permission granted by the judge at the hearing - and pay the fee therefor: ruling (i). The judge also refused the appellant permission to apply for judicial review in relation to the alleged failure to comply with the 1998 Act, on the grounds that there was a suitable alternative remedy in the form of a statutory application for relief under that Act: ruling (ii).

The appellant issued an application seeking permission to appeal against rulings (i) and (ii) and was granted permission by Lewison LJ on 6 March 2015. In the meantime, in accordance with ruling (i), the appellant issued a new claim form seeking judicial review of the decision of 22 July 2014 and, in accordance with ruling (ii), issued a distinct Part 8 claim in the High Court seeking relief in the form of an order of disclosure pursuant to section 7(9) of the 1998 Act. The new claim for judicial review has been settled by consent some time ago. The Part 8 claim is proceeding in the usual way and there is no question of needing to restore the judicial review proceedings as a vehicle for this aspect of the appellant’s complaints. Therefore, as mentioned above, the present appeal is academic.

The judge’s reasons for refusing to grant the appellant permission to bring his claim for judicial review of the decision of 22 July 2014 by way of amendment of the original judicial review claim form were as follows:

“7.

I turn then to the challenge to the 2014 decision. This comes before the court in an unsatisfactory form but not an uncommon form. That is, it is a challenge to a further decision brought in the form of an application for permission to amend existing proceedings. I have made the problem with this clear in a number of cases, and Mr Southey rightly referred to them in an endeavour to distinguish them or to persuade me that a different procedure should be adopted. Notable, they are referred to in R(Rathakrishnan) v Secretary of State for the Home Department [2011] EWHC 1406 (Admin), a case which has been followed in a number of other decisions ….

8.

Where a challenge is brought to a fresh decision while proceedings are still pending, they ought to be brought by way of a fresh claim lodged in the usual way and fee paid, as is required, in the Administrative Court. This means that they can then be subject to the appropriate permission procedure. This includes a consideration of an acknowledgement of service and summary grounds, true arguability and any question of delay. It also enables the status of any existing proceedings challenging prior decisions to be resolved as opposed to the rolling and ramshackle process that otherwise ensues.”

Mr Southey QC, for the appellant, submits that the judge misdirected himself in this passage by stating a principle which is overly rigid and fails to do justice in the particular circumstances of this case. He also says that it is contrary to the guidance given by this court in R v Secretary of State for the Home Department, ex p. Turgut [2001] 1 All ER 719, at 735-736. In the context of the present case, Mr Southey points out that reviews of the appellant’s escape risk classification take place about every six months, and that absent urgent consideration of any such decision by the Administrative Court by way of an expedited hearing it is not practically possible for the appellant to have his claim for judicial review considered by the court before each successive classification decision is superseded by a new one, and thereby becomes academic. Mr Southey submits that in those circumstances the fair and appropriate course is for the court to grant permission for the original judicial review claim to be amended, rather than to require a claimant to issue fresh proceedings in relation to each new decision, even though it is known that each such decision is likely to be superseded by a new decision before the court can consider whether permission should be granted.

Mr Sharland, for the respondent, supports the approach of the judge. He points out that Turgut concerned the legal position before the introduction of the Civil Procedure Rules and dealt with a situation which is different from the present case. He submits that if the appellant wishes to apply for judicial review of any particular escape risk classification decision he should do so promptly after the decision is taken (not wait for three months or more, as the appellant did in these proceedings) and, as necessary, should apply for expedited consideration of the application for permission to apply for judicial review and then for an expedited hearing on the substantive merits if permission is granted.

After the hearing, and in response to our request for information, we were informed that the fees in relation to issuing a new claim form and for issuing an application to amend an existing claim were £140 and £155 respectively at the time of the hearing before the judge, and currently are £154 and £255 respectively. Since it would have been cheaper for the appellant to issue a new claim than to amend his existing claim, it is perhaps surprising that he wished to proceed by way of amendment. However, this point was not drawn to the attention of the judge. Everyone at the hearing before the judge seems to have assumed that it would be cheaper for the appellant to amend than to issue a new claim.

When we pressed Mr Southey as to why it mattered that the appellant should be entitled to amend his existing claim rather than issue a new one in respect of the decision of 22 July 2014, another concern emerged. In circumstances where it was expected that there would be a second operative decision before the case was listed for an oral renewal of the application for permission to apply for judicial review, amendment rather than withdrawal of the extant claim and starting again was a way of reserving an early hearing slot to seek permission for the claim in its amended form. Mr Southey said that this could also be a benefit if permission was granted in relation to a claim to challenge an original decision, with a date for the substantive hearing fixed 12 or 18 months thereafter; then, two or even three further decisions might be taken, each one in turn making the challenge to the previous decision academic. If successive amendments of the original claim were permitted, this meant that there could eventually be an effective hearing of the challenge to at least one of the decisions in the series. This would be much preferable to the alternative situation, in which one never got to a substantive hearing because time ran out before each decision was replaced by the next and hence became academic, so that a fresh claim had to be commenced which would in turn become academic before a substantive hearing took place and so on.

Mr Sharland, on the other hand, emphasised the advantages in terms of orderly procedure for a defendant and the court if the court insisted on a new claim being commenced each time: (i) the claimant would need to seek permission to bring the claim and the court would have the benefit of summary grounds of defence put forward by the defendant in its acknowledgement of service when considering whether to grant permission; (ii) if a fresh claim is brought, the claimant has to sign a statement of truth in relation to the claim as a whole, which goes beyond the statement required when an amendment is put forward; (iii) the court would not be faced with a chaotically formulated claim comprising redundant sections overlaid with amendments, nor with excessive documentation including material which has become irrelevant; (iv) further, if there were a difference in fees, with amendment being cheaper, he also submitted that it would be inappropriate for a claimant to be allowed to escape paying the higher claim fee that anyone else would have to pay (in fact, the assumption that amendment is cheaper in terms of fees is mistaken: see above). Mr Sharland also drew attention to the fact that the appellant’s application to amend to challenge the decision of 22 July 2014 was issued outside the usual time limit for commencing a judicial review claim, as set out in CPR Part 54.5(1).

This ground of appeal concerns a case management decision of a kind that, on familiar principles, this court would only question if the judge has misdirected himself or has reached a decision which is clearly wrong, in the sense that no judge properly directing himself as to the relevant test could reach it. It would be inappropriate and unwise for this court to go very far in trying to legislate for first instance judges in the Administrative Court regarding how they should exercise their ordinary case management powers.

The question whether to allow an application to amend an extant claim so as to allow it to become a vehicle for a challenge to a new decision, or require the claimant to issue a new claim, can arise in many different contexts and the balance between the different factors identified by counsel on each side of the debate may well vary from case to case. Also, the balance of factors which go into making up the composite overriding objective of dealing with cases justly and at proportionate cost, which is to be promoted in applying the Civil Procedure Rules, may vary from case to case: see CPR Part 1.1. Further, different judges faced with making case management decisions in what appear to be similar situations may well be entitled to come to different conclusions about how to proceed when they weigh up these various factors.

It is difficult to generalise regarding what should be done, apart from in very narrow classes of case on a standard pattern. The observations in Turgut addressed one such class of case and remain sound guidance under the Civil Procedure Rules so far as that class of case is concerned, with appropriate adaptation to take account of what happens under the CPR. That is, where a defendant public authority faces an application by a claimant for permission to apply for judicial review of a particular decision, accompanied by evidence filed by the claimant, and in its summary grounds of defence served with the acknowledgement of service the defendant says it has made a new, second, decision in the light of that evidence which is again adverse to the claimant, then “It will in general be convenient to substitute the second decision for the first decision as being the decision challenged in the proceedings”, and the claimant should normally be granted permission to amend the existing claim accordingly: [2001] 1 All ER at 736a-b. This is a relatively straightforward type of case, where the defendant in effect invites the court to pass over any questions which might arise in relation to the first decision by rendering it academic as a result of presenting the court with a new decision and inviting the court to proceed in relation to that new decision. If the claimant has a properly arguable challenge to the new decision, it will typically be just, proportionate and appropriate to grant the claimant permission to amend his existing claim form.

However, in other cases matters may not be so clear. The factors referred to by Mr Sharland are capable of being relevant, depending on the case, but it might also be possible for the Administrative Court to address such concerns in other ways or they may not be particularly strong considerations in the particular case. Thus, (i) it may be that a claimant has given sufficient notice of a proposed amendment so that the defendant has had a fair opportunity to prepare and explain any objection to it to the court, with the result that little or nothing would be gained by requiring production of a new acknowledgement of service; (ii) often in judicial review cases there is no real dispute about the relevant facts, so a signed statement of truth may not have major significance, or the court can impose a condition of amendment to require a statement of truth to be made; (iii) the court can impose a condition requiring the re-formulation of the claim and the re-preparation of any bundles of material, so as to eliminate any irrelevant surplusage; (iv) even if there is an advantage for the claimant in terms of the amount of fees (though this seems not to be the case), the court may assess that it is more in accordance with the overriding objective to allow the claimant to proceed by way of amendment. On the other hand, the court might make an assessment that overall the proper conduct of proceedings will best be promoted by refusing permission to amend and requiring a fresh claim to be brought. The court may be expected to be astute to check that a claimant is not seeking to avoid complying with the usual time limits by seeking to amend rather than commence a fresh claim. A claimant seeking permission to amend would also be expected to have given proper notice to all relevant persons, including interested parties.

I would be concerned if a claimant who obtains a hearing date (whether for an oral renewal or for a full hearing on the merits) for one claim then seeks to use a process of amendment as a means of keeping that hearing date available for him against the possibility that he might wish to use it to challenge another decision which he speculates might go against him. This risks clogging up the list with hearing dates which may not in fact be effective, if any later decision happens to go in the claimant’s favour. More importantly, it represents manipulation of the listing position by the claimant to book a hearing slot so as to jump the queue of other claimants waiting for hearings for their claims, without that claimant going through the process of persuading the court that an expedited hearing is appropriate in his case. Some good reason must be put forward to justify such a course.

In a Turgut type of situation this will normally be justified, since both parties will in effect have cooperated to ensure the true issue in dispute between them has been refined and properly identified and it will be appropriate to proceed to a determination of that issue using the existing proceedings as a vehicle. In my view, it is also likely to be justified in the unusual sort of situation illustrated by the present case, where it can be seen that there will be a series of decisions according to a predictable timetable, with each decision rendering argument about the preceding decision academic and the period between each decision in the series being too short to allow sufficient time for a claim to be brought which will be heard before the next decision is taken.

Relevant factors in this latter type of case will be if the claim is of a kind which might well otherwise be fit for expedition and if the risk of any hearing date proving ultimately to be wasted is relatively low. As to the former, the interests of securing effective access to a court to test the legality of the treatment to which a claimant is being subjected over an extended period of time and the compelling need to safeguard the principle of the rule of law in a case such as the present mean that a practical and reasonable way forward must be found to allow the claimant to have a fair opportunity to get before a court to have his case heard, and not simply face it being dismissed at each stage as academic. A claimant who launched proceedings very promptly after one decision in the series and immediately sought expedition for those proceedings might achieve a hearing sufficiently quickly to have his challenge to the lawfulness of that decision determined by the court, but that would itself involve jumping the usual queue, causing a degree of disruption to the Administrative Court list, and might involve both parties having to prepare in great haste, which is not necessarily conducive to thorough consideration of a case. Proceeding by amendment and re-amendment of an existing claim so as to ensure the latest decision in a series comes before the court for an effective hearing is likely to be an acceptable alternative way forward in procedural terms.

As to the risk of wasted hearing dates and undue clogging up of the lists, it is true that there may be some element of speculation about whether the decisions in the series will consistently be made in a manner adverse to the claimant, but in a context like the present it is likely that there will be a fair degree of consistency in the absence of any material change of circumstances. Accordingly, the risk of improper clogging up of the list is comparatively low.

This academic appeal was brought before the court so that we could give guidance as to procedure. This I have sought to do above, to the limited extent I think it is sensible to do so. I think that in the particular circumstances of this case Ouseley J adopted a somewhat over-rigid statement of the approach to be adopted by way of a starting point. In the very limited category of cases such as that before us, a neutral starting point is to be preferred with a fact specific focus on practicality and case management. However, the practical result of what he did seems to me to have been entirely sensible. In any event, since the appeal is agreed to be academic, it should be dismissed for that reason.

The 1998 Act imposes a range of obligations on data controllers, as defined, who may be public authorities or may be private persons. Section 7 of the Act creates a right for an individual who is a data subject to seek from a data controller, among other things, disclosure of personal data about him held by that data controller. Section 7 sets out a framework for consideration of such a request. Section 7(9) provides for a remedy for the individual if he is dissatisfied with the response of a data controller to his request for disclosure. It provides:

“If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of these provisions, the court may order him to comply with the request.”

An order of compliance made under section 7(9) can be sought against public authorities and against private persons. It is not a mandatory order of the kind that has replaced the old prerogative writ of mandamus in public law. An order under section 7(9) is thus not an order which must be sought by way of judicial review (see CPR Part 54.2); nor is it an order which may be sought in judicial review proceedings (see CPR Part 54.3). Accordingly, the decision in R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin); [2004] Prison LR 65, in which an order under section 7(9) was made in judicial review proceedings, is rather surprising, but explicable on the basis that no-one appears to have drawn the attention of the court to the relevant provisions of CPR Part 54.

An order under section 7(9) is a distinct form of order which may be sought in proceedings in the High Court (typically, we were told, under CPR Part 8) or in the county court. The remedy under section 7(9) is the remedy specifically designed for a complaint of a failure of disclosure on the part of a data controller in respect of a data subject access request made under section 7. There can be no question but that it is a suitable remedy for individuals to vindicate their rights under section 7.

In his judicial review claim form, however, the appellant included a claim for “A mandatory order requiring compliance with the 1998 Act within 14 days”. I agree with Mr Southey that the High Court has jurisdiction to grant a mandatory order in judicial review proceedings to compel a public authority which has failed to comply with a legal duty to comply with a data subject access request under section 7 of the 1998 Act to act in accordance with its duty. Section 7(9) does not abrogate the High Court’s usual wide public law jurisdiction in that regard.

However, although the High Court has jurisdiction to make such an order in judicial review proceedings, it is very difficult to think of circumstances in which it would be appropriate for it to exercise that jurisdiction. Only in rare and exceptional cases would it be right to do so. The usual position should obviously be that such a claim for judicial review should be refused on the basis that there is a suitable alternative remedy available, in the shape of the remedy under section 7(9) which Parliament has specifically created in relation to subject access requests under section 7.

In the present case, this was the reason given by Ouseley J for refusing permission for the appellant to seek a mandatory order in the judicial review proceedings in respect of the 1998 Act matter. In my view he was undoubtedly correct to do so and the appeal in relation to ruling (ii) must be dismissed.

Mr Southey submitted that a claim for a mandatory order in judicial review proceedings for disclosure to comply with the duty in section 7 of the 1998 Act might be justified on one of two bases: (a) because it might lead to disclosure of information which could assist a claimant in some judicial review challenge to another decision brought together with the 1998 Act complaint in those proceedings; or (b) because a claim that a public authority had failed to make proper disclosure under the 1998 Act might bolster a claimant’s public law complaint in a case like the present that he had not been provided with information which ought in fairness to have been provided to him before the respondent made the escape risk classification decision (or decisions) under challenge. I do not think that either justification holds water.

As to (a), inclusion of a claim for additional disclosure under section 7 of the 1998 Act by the defendant in judicial review proceedings alongside a challenge to some public law decision in the same proceedings cannot assist in the obtaining of evidence to support that challenge, because a mandatory order to provide the information would only be made at the conclusion of the proceedings, i.e. when the relevant challenge has already been concluded and determined. Moreover, a public authority facing a judicial review challenge to one of its decisions will in any event be subject to a duty in the course of the judicial review proceedings to give a candid explanation of how the decision came to be made (see R v Lancashire County Council, ex p. Huddleston [1986] 2 All ER 941, 945) to allow the court to make a fully informed assessment regarding its lawfulness, so relief in relation to the 1998 Act will be unnecessary to achieve that objective.

As to (b), it will be a rare case in which a complaint about disclosure pursuant to the 1998 Act will add anything material to a challenge to a public law decision based on an allegation of a breach of the duty of fairness. If a person has been treated unfairly in relation to a decision because he has not been given relevant information pertaining to it and a fair opportunity to make representations thereon, he will be able to maintain such a case without needing to become embroiled in arguments about the 1998 Act. But even if he does rely in part on an alleged failure to comply with section 7 of the 1998 Act, that can be addressed without the need to make any order for disclosure pursuant to that provision.

In my view, it will usually be inappropriate for a claimant to seek a mandatory order in relation to section 7 of the 1998 Act in judicial review proceedings in the way the appellant here has done. The inclusion of such a claim serves only as a distraction from what ought properly to be in issue in judicial review proceedings and is likely to delay determination of the matters which are properly in issue in those proceedings. Claimants and their advisers should think long and hard before including in a judicial review claim a claim pursuant to section 7 of the 1998 Act of the kind which the appellant included in his judicial review claim.

I agree.

I also agree.