Witness IIA126, R (on the application of) v Chairman of the Independent Inquiry Relating to Afghanistan

1. MRS JUSTICE STEYN: The claimant applies for permission to amend the statement of facts and grounds to include an additional ground, ground 6, alleging that the defendant's decision to hold the restricted closed hearings permitted by the RO Ruling during the 14 day timeframe in which a judicial review challenge to the decisions could be brought and/or after he was made aware that a judicial review challenge would be brought was procedurally improper.

2. The claimant submits that the requested amendment results from information made available to the claimant after the original grounds were drafted and that the proposed additional ground "only crystallised upon receipt of the information provided in the defendant's summary grounds received by the claimant on 21 August 2025".

3. The claimant set out the terms of the proposed additional ground in his reply on 28 August 2025. In addition, the claimant seeks to amend the form of relief sought. I referred to that amendment already in my earlier judgment on the joinder applications.

4. The claimant submits that he has acted promptly in making this amendment application in accordance with paragraph 12.2 of PD54A. The claimant draws attention to the fact that although the open gist of the adjournment ruling was disclosed on 8 July, the claimant sought information about the holding of the hearings and did not know at that stage when any of the restricted closed hearings had been held or whether there were any more to come. The claimant sought such information and the defendant was not forthcoming in response to that.

5. In a response to the letter from the claimant of 10 July 2025, on 17 July 2025 the defendant stated in response to a number of the duty of candour disclosure requests that the information sought was subject to a restriction order. That included requests for the dates on which restricted closed hearings took place and the questions regarding any schedule.

6. Ms Grange submits that at the most the claimant has delayed by three days in making this application to amend. That is based on the fact that on 11 August 2025 the Inquiry published the open gist of the Chair's ruling on disclosure about the conclusion of the Green hearings and so that would put the 14 day time limit as 25 August 2025.

7. Ms Grange further submits that there is no prejudice to the defendant in relation to the timing of this application. It is, she submits, absurd to say that there needed to be a fresh claim for this application to be dealt with promptly. It would not have been in the interests of justice for the claimant to have had to issue entirely fresh proceedings with all the applications for anonymity and so on that that would have entailed.

8. The defendant objects to the application. Firstly, the defendant submits that ground 6 is not in truth an additional ground of challenge to the rulings that are currently the subject of the claim. Ground 6 is a challenge to a separate decision regarding the refusal to amend and the listing of the hearings. In principle, therefore, the defendant submits that that is a separate claim and permission to amend should be refused.

9. Secondly, the defendant does rely on delay on the basis that the claimant did not derive any new information from the summary grounds of defence and was aware, as is apparent from the letter of 10 July, that hearings had been held and had been aware since 8 July of the refusal of the adjournment application.

10. The time limit for an application for judicial review of a decision made by a member of an inquiry panel is 14 days after the day on which the applicant became aware of the decision, unless that time limit is extended by a court: see section 38 of the Inquiries Act 2005 .

11. In my judgment, it is right to say that the additional ground sought to be adduced is an application for judicial review of a separate decision to the rulings that are currently the subject of the claim. That does not necessarily mean that the application had to be brought by way of fresh proceedings. It is possible within a single claim form to challenge more than one decision, as the claim form already does, and the application could have sought to amend, so that the separate decision sought to be reviewed was also the subject of judicial review. It does seem to me that it follows from that, that the court ought to be looking at the period of 14 days after the day on which the applicant became aware of the decision which he seeks to review.

12. In essence, this is an application to review the decision to refuse the adjournment, because by that decision, the Inquiry had determined that it was not prepared to adjourn until after the 14 days for filing a judicial review of the two rulings that are the subject of the claim had expired. The application to adjourn had been made by the MoD corporate team precisely on the basis that that was the period for judicial review proceedings to be brought and that they were likely to be brought.

13. Looking at the chronology, the claimant was aware of the open gist in respect of the adjournment application on 8 July and it is apparent from the letter of 10 July that the claimant understood that restricted closed hearings had been held. In that letter the claimant said, "It is now evident that the Chair considered it appropriate to hold restricted closed hearings within the truncated time limit for bringing a judicial review of the Inquiry's decisions."

14. So it seems to me that the first question is when should the application to amend have been brought. The 14 days from 8 July takes one to 22 July 2025. In my judgment, that is the date by which an application ought to have been made in order to act promptly because, if the application was to be made by way of an amendment, it ought still to have complied with section 38 of the Inquiries Act 2005 . Even if that were wrong, the application was still not made within 14 days of the publication of the open gist of the Chair's ruling on disclosure about the conclusion of the Green hearings, which was published on 11 August 2025, albeit I accept that the delay, if one were to take it from that later date, is much shorter. But it does seem to me that, in reality, the delay is from 14 days after publication of the open gist of the adjournment application, with the consequence that the application to amend is just over five weeks late.

15. In the context, in the context of such a short time limit, that is a very significant delay and it cannot be said that the application has been made promptly in accordance with paragraph 12.2 of PD54A. For those reasons I refuse the application to amend insofar as it relates to the application to add ground 6.

16. In relation to the application to amend the relief sought, whilst strictly the claimant was aware that hearing had been held, it is, in my judgment, in the interests of justice to allow the claimant to amend the relief sought to reflect the true position. Currently the relief sought is based on the Green hearings not yet having taken place. That is understandable in circumstances where the summary grounds were drafted the day before the open gist of the adjournment application had been published, and it seems to me there is no prejudice to the defendant in allowing the application for relief to be amended. So I do grant that aspect of the application to amend.

17. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]