R (Cowl) v Plymouth City Council (Practice Note)

Judicial review should not proceed, save for good reason, where a significant part of the dispute can be resolved through a complaints procedure, mediation or other alternative dispute resolution. An alternative process need not replicate every function of judicial review. The court may use its powers under the CPR, including an inter partes hearing on its own initiative, to require parties to explain their efforts to avoid litigation.

A public authority may lawfully make a decision in principle to close a care home after a limited assessment of viability. In the absence of a statutory requirement to the contrary, a full assessment of each resident’s needs and of the effects of any move is required before a final decision to move that resident, rather than before the decision in principle.

Seven residents of a local-authority residential care home sought judicial review of the council’s decision to close the home. They relied on alleged assurances that it would be their home for life and contended that comprehensive needs assessments and care plans had to precede the closure decision.

In the Administrative Court, Scott Baker J rejected the claims. He held that the alleged assurances were not established, the consultation was adequate, and detailed assessments of individual moves were premature. The residents appealed. The central issues were whether the council’s staged closure process was lawful and whether the statutory complaints procedure or other ADR should have been used to resolve the dispute.

1. Appeal dismissed. The court held that no material issue of legal principle divided the parties. It was common ground that a full assessment of the effect of any move on each resident had to occur before a final decision to move that resident.

2. The council was entitled to adopt a two-stage process. It could first decide in principle whether closure was a viable option, based on a limited assessment of impact and re-housing practicality. It then had to undertake a detailed individual assessment before making any final decision requiring residents to move. In the absence of a statutory requirement fixing an earlier stage, the legal requirement was that the assessment be undertaken before the final individual decision, not before the decision in principle to close.

3. The council had initially failed to explain that its closure decision was conditional on later detailed assessment. That omission initially justified the residents’ concern. Once its position was clear, however, the residents’ insistence on a technical sequencing objection did not establish unlawfulness.

4. The court gave practice guidance that judicial review courts should scrutinise such applications carefully and use CPR powers to promote resolution through a complaints procedure, mediation or other ADR. A party has no entitlement to pursue judicial review merely because the alternative procedure does not exactly duplicate it. Proceedings should ordinarily not continue where a significant part of the dispute can be resolved outside litigation, while any remaining legal issue can later be determined by the court.

5. The court scheduled the parties’ agreement for an independent complaints review panel, reconsideration by the council, and continued residence pending that process. The agreed process could properly go beyond the council’s statutory obligations. The appeal was dismissed with costs, subject to the stated six-week arrangement concerning the drawing up of the costs order.

• Court of Appeal: Appeal dismissed by the judgment of the Court, [2001] EWCA Civ 1935. The court scheduled the parties’ agreed complaints and reconsideration process.
• Administrative Court (Queen’s Bench Division): Scott Baker J dismissed the judicial-review claim on 14 September 2001.