September 5, 2022

KXH -v- London Borough of Brent and another (anonymity order)

Administrative Court High Court Queen's Bench Division Anonymity Order

Case No: CO/2954/2022

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

2 September 2022

Before:

The Honourable Mrs Justice Steyn DBE

Between:

KXH (a Protected Party by his Litigation Friend AXH)

-v-

London Borough of Brent

and

NHS North West London ICB

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimants and the Defendants

ORDER by the Honourable Mrs Justice Steyn DBE

1. Pursuant to CPR rule 39.2, no person shall publish the Claimant’s name or address, or any other information likely to identify the Claimant, in any report of these proceedings, without leave of the Court. The Claimant is to be referred to as ‘KXH’, his mother and litigation friend is to be referred to as ‘AXH’ and these proceedings shall be known as ‘R (KXH) (a protected party, by his litigation friend AXH) v London Borough of Brent and NHS North West London ICB’.
2. The Claimant’s application dated 26 August 2022 is granted.
3. The Defendant’s application for a stay is refused.
4. The application for permission to apply for judicial review is adjourned to be listed in court as a “rolled-up hearing”, on notice to the Defendants, as soon as possible after 24 October 2022. If permission to apply for judicial review is granted at that hearing, the Court will proceed immediately to determine the substantive claim.
5. The application is to be listed for 1 day; the parties to provide a written estimate within 7 days of service of this order if they disagree with that estimate.
6. Costs reserved.

Reasons

1. I have granted the Claimant’s application for anonymity. I consider that the balance between the Claimant’s article 8 ECHR rights and the public’s article 10 rights, including in particular the interests of open justice, weighs in favour of granting such an order, having regard in particular to the sensitive nature of the information about the health and welfare needs of the Claimant (a protected person) that is central to this claim.
2. I have also granted the Claimant’s application dated 26 August 2022 to rely on a reply and witness statement in response to the Defendants’ response to the application for expedition.
3. This claim was received in the Administrative Court Office on 15 August 2022 and issued for service the same day. The Claimant seeks to challenge the alleged protracted review of his care and support plan and the failure to provide interim support.
4. The Claimant seeks an order for expedition with a rolled-up hearing to be heard not before 14 days of this order and before 23 September 2022. This order is sought on the basis that the Claimant’s needs are being unmet causing him to self-regulate in unsafe and inappropriate manners which causes danger to himself and his family. The Claimant submits the urgency of the situation requires an expedited rolled-up hearing with the abridged timetable the Claimant has proposed. The Defendants do not oppose an order for a rolled-up hearing in principle, but submit that the proposed timetable is unrealistically protracted. They submit that the claim should be stayed while the review they are seeking to carry out, which they contend is being frustrated by lack of cooperation on the part of the Claimant’s mother, is completed. But if the court does not consider a stay should be granted, they submit that the case should be listed not before 24 October 2022.
5. I am not persuaded that there are any good grounds to grant a stay of this claim.
6. I recognise that a rolled-up hearing is a significant departure from the twostage permission/final hearing structure of Part 54 proceedings, and such an order should not lightly be made, even if the parties agree that such a hearing is appropriate. Nevertheless, a rolled-up hearing may, sometimes, be ordered as a feature of expedition, and in my judgment it is appropriate to make such an order in this case. First, I accept that this claim should be expedited, having regard to the evidence of significant delay in the review process and the impact on the Claimant and his family. Secondly, it seems likely that the outcome of this claim will depend on the evidence. It is therefore appropriate, in my view, to progress speedily to a hearing at which the evidence is before the court. Accordingly, I have ordered a rolled-up hearing.
7. However, I consider that the Claimant’s proposed timetable is unrealistically and unnecessarily protracted. The Claimant’s abridged timetable would require the Defendants to file and serve an acknowledgment of service and summary grounds of defence within 7 days of this order but makes no provision at all for the Defendants to file evidence. In circumstances where the Claimant contends that the review of his current care and support plan has been ongoing since March 2021 and has not yet been completed (although in the meantime, additional support in the form of ABA therapy has been provided on an interim basis since March 2022), and having regard to the evidence as to the risk to the Claimant, I consider that the Defendants’ proposed timetable is realistic and appropriate. I have made case management directions accordingly.

Case Management Directions

1. The Claimant must, within 7 days of the date of service of this Order, file an undertaking to pay the continuation fee (see below) if permission to apply for Judicial Review is granted
2. The Defendants and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 28 days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR 54.8 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR 54.14.
3. Any application by the Claimant to serve evidence in reply shall be filed and served within 7 days of the date on which the Defendant serves evidence pursuant to 1(b) above.
4. The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 1 week before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall, if requested by the Court lodge 2 hard-copy versions of the hearing bundle.
5. The Claimant must file and serve a Skeleton Argument not less than 10 days before the date of the hearing of the judicial review.
6. The Defendants and any Interested Party must file and serve a Skeleton Argument not less than 5 days before the date of the hearing of the judicial review.
7. The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and if requested, the hard copy version of the bundle, shall be lodged with the Court not less than 3 days before the date of the hearing of the judicial review.
8. CPR 2.11 shall not apply to these proceedings.