McC (An Infant), R (on the application of) v Gloucester Primary Care Trust & Anor

Where judicial review proceedings concern the provision of support for a disabled child, the court may keep the proceedings in being for the period covered by an agreed settlement. The overriding consideration is to ensure that the agreed provision continues for the agreed period. The proceedings may remain available as a fall-back if implementation becomes disputed. Earlier dismissal may take place by consent where both parties agree that the proceedings are no longer necessary.

The claimant was a severely disabled child with cerebral palsy and substantial physiotherapy and occupational therapy needs. His father, acting as litigation friend, had brought repeated proceedings concerning the adequacy and implementation of special educational provision. The parties negotiated detailed terms governing provision until 31 July 2004 and invited the court to stay the proceedings on those terms.

The central issue was whether the order should permit earlier dismissal on an unspecified application, or whether the proceedings should remain in being until the agreed date unless both parties consented to earlier dismissal.

1. Settlement and continuing supervision. The negotiated schedule made detailed provision for the disabled child’s support until 31 July 2004. In light of the substantial difficulties that had previously arisen, the overriding consideration was to ensure that the agreed provision continued throughout that period.
2. Retention of proceedings. It was appropriate to keep the judicial review proceedings in being until 31 July 2004. They would provide a fall-back in the event of a dispute about the provision required under the schedule. Their continuation would cause no additional costs provided the schedule was implemented.
3. Earlier dismissal. The proposed wording allowing an earlier application for dismissal was deleted. The parties remained free to apply by consent for earlier dismissal if they jointly considered that the proceedings were no longer necessary.
4. Order. The proceedings were stayed on the revised settlement terms and were to stand dismissed on 31 July 2004. There was no order for costs.