Thuo, R (on the application of) v Secretary of State for the Home Department

SIR THAYNE FORBES: As I have just said, this is a very late application for an amendment. The amendments themselves are significant and they are, as has been accepted in argument, incomplete and will require revision and additions made to them.

On behalf of the Secretary of State, Mr Johnson has objected to the proposed amendments in two particular respects. First, so far as concerns the suggested amendment for the addition of an order quashing the determination of the Immigration Judge of February 2008, Mr Johnson pointed out that that is an amendment which is not supported by the pleadings as they presently stand and is one which goes to the very heart of many of the arguments presented by the Secretary of State in this case. Second, he objects to the amendment which seeks to add a claim for damages for the first time.

Mr Johnson took me through the chronology of matters carefully and indicated that the first real notice that he had of these important proposed amendments in any written form was not until the receipt of the claimant's skeleton argument last Thursday, a week ago. As a result, Mr Johnson submits that there are matters relating to the claim in respect of the Immigration Judge's decision which might require the filing of evidence. There is also the possibility that the AIT needs to be notified, as an interested party, of the proposed amendment. Finally, in relation to the claim for damages, the Secretary of State has not had an opportunity to carry out any medical examination of her own to deal with the matters raised by way of late submission of medical evidence apparently in support of the damages claim.

On behalf of the claimant, Miss Cronin has made it clear that she has come into this matter late in the day and she takes responsibility for the proposed further amendments in respect of which leave is sought. She has very carefully explained why she considered that the amendments are necessary. Stated shortly, it is her case that only by making the necessary amendments can full justice be done to this claimant's claim.

Miss Cronin very properly accepted that, as things presently stand, there is not a pleaded case which supports the relief sought by way of a quashing order of the determination of the Immigration Judge. She has accepted the need for further amendments to deal with that particular matter. However, she submits that if she does have leave to amend, as appropriate, and does have the opportunity to present the whole of this case on behalf of the claimant, she will be able to meet the challenge presented to the claimant's claim by the decision of the Court of Appeal in R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445. In broad terms, that decision establishes the principle that the court should, in all normal circumstances, decline to entertain an application for judicial review of issues which have been, or could have been, the subject of a statutory review under section 101 of the Nationality, Immigration and Asylum Act 2002. The key to overcoming that hurdle appears to be the principal enunciated in AM [2008] 1 WLR 2062, in which the court accepted that it could still be appropriate to intervene by way of judicial review if that was the only means whereby a manifest injustice to the claimant can be avoided.

I state the principles very shortly and subject to correction on a fuller and more complete consideration but, as it seems to me, I have identified the essential elements of those two decisions which form an important background to this claim. The position is, so it seems to me, that G does not provide an absolutely unscalable hurdle in the path of the claimant. If the claimant can show that she will suffer an otherwise unavoidable injustice then it may be appropriate for this court to intervene and take appropriate steps to cure that injustice which may, in the circumstances of this case, involve quashing the determination of the Immigration Judge and the procedures that flowed from that determination. That would include, amongst other things, the statutory decision with regard to reconsideration which in the High Court was, as it happens, made by me. When I asked if there was any objection to my dealing with the matter in those circumstances, Miss Cronin very fairly acknowledged that there was no objection.

I find this not an entirely straightforward matter. As I indicated at the beginning, there is the difficulty that I do not have a full and complete proposed amendment. As it seems to me, from what Miss Cronin submits, there a risk that were I to refuse the amendment an injustice may be done. The prejudices that were identified on behalf of the Secretary of State are ones that can be met by the grant of an adjournment so that the matter can be put in proper order. It therefore seems to me that justice requires that I should grant leave to amend in terms which I will come to in just a moment. I do so with reluctance, because I realise that in so doing it is going to be necessary to adjourn this matter to a future date, when the matter will then hopefully be dealt with on a full and proper basis.

The way in which I propose to deal with the matter is as follows. The claimant is to have leave to amend the claim form in accordance with those matters set out in paragraph 2.2 of the written skeleton argument prepared by Miss Cronin and Miss Kotak on behalf of the claimant. I direct that all matters of fact upon which the claimant relies in support of those proposed amendments are also to be added to the claim form by way of amendment. The amended claim form is to be filed and served upon the defendant within -- how long do you want, Miss Cronin?

MISS CRONIN: My Lord, I would have thought two weeks.

SIR THAYNE FORBES: Two or three weeks?

MISS CRONIN: Perhaps three.

MR JOHNSON: My Lord, the knock-on effect is going to be such that three weeks will not make any difference to us, I suspect.

SIR THAYNE FORBES: In that case you obviously need to get it absolutely right, Miss Cronin. To be filed and served within 21 days of today. The defendant's amended summary grounds of defence, if any, are to be filed and served --

MR JOHNSON: We will not need very long. Two weeks thereafter.

SIR THAYNE FORBES: Within 14 days thereafter. I think we are going to have to deal with evidence here. Is there going to be any further evidence from the claimant?

MISS CRONIN: My Lord, I do not anticipate it. There is not a great deal of dispute on the facts because it really is a case about policy. I am not sure that there needs to be any evidence at a hearing. We have a number of reports and various of those were served in May of last year, so some of the medical evidence has been there for some considerable time and the expert reports have been there for some time.

SIR THAYNE FORBES: If you do not think there is anything very much, if I give you seven days for any evidence on the part of the claimant when would you like that time to run from? From today?

MISS CRONIN: My Lord, I wonder if it could run from seven days after we file, to just get it prepared. If your Lordship was to give us two weeks that would probably --

SIR THAYNE FORBES: From now?

MISS CRONIN: Yes.

SIR THAYNE FORBES: Right. The claimant is to file and serve any further evidence within 14 days of today. The defendant's evidence. You need to see the fully amended pleading, really, do you not?

MR JOHNSON: We do, although that is not really the issue that will prolong the time. The issue that will prolong the time is if we decide that it is necessary to obtain medical evidence. For that reason we would seek six weeks.

SIR THAYNE FORBES: Very well. From today. The defendant is to file and serve her evidence within six weeks of today. What about the AIT? They ought to be notified. The AIT is to be served as an interested party with the claim form and all supporting documentation within.

MR JOHNSON: My Lord, it may be completely sterile. It may be that the AIT should be a defendant.

SIR THAYNE FORBES: Yes, actually it might. The claimant needs therefore to have permission to add the AIT as defendant. Permission to the claimant to add the AIT as a defendant. Do I need to give a direction with regard to the service of all the amended pleadings or amended documentation, or should that follow automatically?

MISS CRONIN: My Lord, I would have thought it would follow automatically.

SIR THAYNE FORBES: In that case, I will simply say that time for the AIT's acknowledgment of service and summary grounds of defence, if any, is extended to eight weeks from today. That should enable them to be served with everything. Eight weeks from today will take us up nearly to the end of term. If I were to say the case is to be fixed for hearing on the first available date in the Michaelmas term. This at the moment was estimated as a day. It is going to take quite a lot longer than that or very well may do. Two days?

MISS CRONIN: Yes.

SIR THAYNE FORBES: It looks like a two day case to me. The first available date in the Michaelmas mass term with an estimate of two days. Since I have had quite a lot of dealings with it, would you want it to be reserved to me if possible?

MISS CRONIN: My Lord, I think that is a very sensible idea.

SIR THAYNE FORBES: I will simply say to be listed before Sir Thayne Forbes, sitting as a judge of the High Court, if possible. That might save somebody a little bit of reading time if it is possible to get it before me, but it is not an absolute reservation. Costs reserved. Or are you going to ask for your costs?

MR JOHNSON: My Lord, I am. Partly in case it comes before another judge. My Lord knows anything that needs to be known to make an order for costs on this. It may be an academic order because the claimant is legally aided, but the costs of today and the costs of, and consequential to, the amendment should be the defendant's in any event. In my submission there is no reason for not granting the order.

SIR THAYNE FORBES: What do you say about that, Miss Cronin?

MR JOHNSON: They will not be enforced, I accept.

SIR THAYNE FORBES: Without the permission of the court, no.

MISS CRONIN: My Lord, I would ask that it would simply be costs reserved because it is a matter for when all of these matters are properly pleaded.

SIR THAYNE FORBES: On the other hand -- I will not say it is your fault, you personally -- this is to accommodate the claimant with a very late amendment in circumstances where it is accepted that the proposed amendment, such as it was, was incomplete. I think that it is a case where the claimant ought to pay the costs, not to be enforced without leave of the court. It may be the case that if you were to be successful on the claim for damages, the Secretary of State will at least have the cold comfort of being able to set off against any such damages if they were to be awarded that liability for costs.

MISS CRONIN: My Lord, can I simply suggest, perhaps, that it be the costs of today that are given to the Secretary of State but the consequential costs which my learned friend is seeking are not made part of the order. My Lord, that is because the amendments are that are sought are amendments that are properly within the proceedings. Your Lordship, having given leave for those amendments to be included so as to avoid an injustice in this case, in my submission to then visit the claimant with the consequences of those amendments at this stage would not be a properly appropriate order. My Lord, I certainly do not take issue with the costs of today.

SIR THAYNE FORBES: Very well. Anything more you want to say, Mr Johnson?

MR JOHNSON: Yes. On that point, the claimants had two free amendments already and we do not seek the costs of those, but third time unlucky. These amendments could have been made last time round or the time before. The claimant's costs of amending should not be borne by the defendant in any event. We should not have to bear our consequential costs of amending. The appropriate order is costs of, and consequential to, the amendments.

SIR THAYNE FORBES: I am satisfied that this is a case where it is appropriate for the claimant to pay the defendant's costs of today and the costs occasioned by, and arising out of, the proposed amendments. Such order not to be enforced without leave of the court.

Can I just give a direction that I would like to approve the transcript of the ruling in case some other judge has to deal with it. I would like him or her to have at least a reasonably coherent ruling to look at if it is necessary to do so. Of course the substance will not be changed in any way at all. It is a question of tidying the grammar and avoiding repetition and such.