BRY -v- Derby City Council (anonymity order and application for judicial review)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim Number: AC-2025-LON-000574

In the High Court of Justice
King’s Bench Division
Administrative Court

21 March 2025

In the matter of an application for judicial review

Before:
His Honour Judge Auerbach

Between:
The King on the application of
BRY (by his litigation friend BYD)
-v-
Derby City Council

Upon consideration of applications, documents and correspondence on the Court’s file

ORDER by His Honour Judge Auerbach (sitting as a Judge of the High Court)

  1. Pursuant to rule 39.2 CPR 1998, the identity of the Claimant shall not be disclosed and the Claimant shall be referred to as BRY. In order to preserve his anonymity the Claimant’s mother shall be referred to as BYD. Pursuant to rule 5.4C CPR 1998 a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment, or order from the court records only if the document in question has been anonymised in respect of both BRY and BYD.
  2. BYD is appointed as BRY’s litigation friend pursuant to rule 21.2(1) CPR 1998.
  3. The Claimant’s application for an extension of time for service of the claim and associated documentation, and filing of the certificate of service, is granted.
  4. The Claimant’s application for a stay is refused.
  5. Permission to apply for Judicial Review is refused.
  6. The costs incurred by the Defendant up to the date of this order are to be paid by the Claimant to the Defendant, subject to assessment. The Claimant has the benefit of costs protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimant shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimant to the amount of costs claimed shall be dealt with on that occasion.

Reasons

  1. The decision sought to be challenged is that of 15 November 2024 being an iteration of the Claimant’s EHCP. The substantive challenge is to the Defendant’s decision not to name the Claimant’s nominated provider school in the EHCP and to name a different school which the Claimant says is unsuitable. The relief sought includes a mandatory order requiring the Defendant to issue an amended EHCP naming the Claimant’s nominated provider.
  2. The Claimant is a child and so I have granted the application for his mother to act as his litigation friend. Having regard to the fact that he is a child, his disability, and the subject matter of the claim, I have granted the anonymity order sought for him and hence also for her.
  3. The Claimant is represented by solicitors. The claim form is dated 14 February 2025. It was accompanied by an application for an anonymity order and a rolled-up hearing and to be permitted to file an updated SOC for such a hearing, if granted. The claim form was sealed and issued on 25 February 2025.
  4. On 25 February 2025 at around 5pm the Claimant’s solicitors purported to serve the claim form on the Defendant by email. However, as the Defendant’s email footer and auto-reply state, it does not accept service by email except by prior specific agreement.
  5. Having had this drawn to their attention the Claimant’s solicitors, by an application of 5 March 2025, applied for an extension of time for service to 7 March (and a corresponding extension for the certificate of service).
  6. Solicitors were appointed for the Defendant who accepted service on 6 March 2025, and there is a certificate of service of 11 March 2025.
  7. The Defendant’s solicitors wrote on 12 March 2025 opposing the Claimant’s applications in respect of late service, and for a rolled up hearing, and asserting that permission should in any event be refused. They seek their costs of having to deal with both applications, including an order for wasted costs against the Claimant’s solicitors.
  8. As to the merits the Defendant relies in particular on the fact that an appeal to the SEND against a previous iteration of the EHCP, from August 2024 (which also named another school which the Claimant maintains is not suitable) is on foot and listed for an expedited hearing on 30 April 2025. They maintain that this is the appropriate route of challenge and provides an alternative remedy. The Claimant disputes that.
  9. The Claimant has made a further application, on 17 March 2025, for these proceedings to be stayed pending the outcome of the SEND appeal. A rolled-up hearing is no longer sought. A covering letter elaborates on the application and provides a rejoinder to the Defendant’s solicitors’ letter of 12 March 2025.
  10. An email from the Defendant’s solicitors of the same date opposes the stay application.
  11. The Defendant says that the Claimant has not acted promptly, but, having regard to the account given by the Claimant of developments during the course of the three-month period since 15 November 2024, I do not treat the claim as out of time for that reason.
  12. The Claimant rightly accepts that an extension of time for service is required, because the claim was sealed and issued on 25 February 2025 but not properly served until 6 March, therefore two days late.
  13. The default is serious and significant. Effective service is an essential requirement, being the mechanism by which a Defendant is required to answer to the Claim. Timely service is important in judicial review proceedings generally, and particularly where the matter is ongoing. The initial failure was not only as to the method of service, but also with regard to inclusion of the permission bundle.
  14. The explanation appears to be simply that mistakes were made by those dealing with the matter at the Claimant’s solicitors. That is not a good excuse.
  15. Standing back and looking at all the circumstances of the case, and the balance of justice, I have had particular regard to the need for compliance with rules, and for litigation to conducted efficiently and at proportionate cost. However, in this case service was effected only two days late, the Defendant had, in practice, some prior awareness of the claim’s existence by virtue of the ineffective service, and the matter is not so very time-critical that the two days will make a material difference to the conduct of the litigation itself.
  16. The Defendant has been put to the cost of dealing with the application, but I do not think that it would be right to regard that as a reason for refusing the extension application itself. The Defendant itself, through its solicitors, also indicates that it might not have taken the service point, but for the fact that it regards the claim as unmeritorious. However, that can be addressed in its own right when deciding whether to grant permission in respect of the claim itself.
  17. I have therefore concluded that time for serving the claim and accompanying documentation should be extended, and, consequentially, time for filing the certificate of service.
  18. However, I do not agree the Claimant’s application for a stay and I refuse permission to appeal. That is for the following reasons.
  19. The essential point of dispute is whether the appeal to the SEND which is on foot provides an appropriate alternative remedy. I consider that it does. It will directly address and determine the underlying issue of substance, being which school should be named in the EHCP. It is the specialist body which legislation has created and specifically designated to resolve such disputes.
  20. I do not agree with the Claimant that R(S) v Camden [2018] EWHC 3354 (Admin) shows that the SEND cannot provide an adequate remedy. I agree with the Defendant’s arguments in its letter of 12 March that that case is distinguishable and confined to its facts. I do not think it can be regarded as authority for the general proposition that the existence of the SEND route of challenge does not provide an adequate remedy. The Claimant’s arguments about the remedies which could, theoretically, be awarded by the Court, but not the SEND, do not show that the SEND could not, in practical reality, provide the Claimant with real and substantive relief in this case. I note also that if the decision of the SEND goes against the Claimant, there will be a route of further appeal available to the FtT.
  21. All of that being so, it is not appropriate to grant a stay and I have refused permission to apply for judicial review. The Claimant has an adequate alternative remedy.
  22. In light of all the foregoing, I consider that the appropriate order for costs is in favour of the Defendant, but subject to the usual provision where the other party is legally aided. I do not consider that it would be just to make an award for wasted costs in this case.