Hickmott , R (on the application of) v Brighton and Hove Council & Anor

A court may discharge or vary a consent order made in judicial review proceedings where the underlying situation is dynamic. The applicant must establish a high threshold: a clear and cogent case, supported by clear evidence and compelling reasons. The public and private interest in finality of litigation is material, particularly where the order concerns performance of a statutory duty by a public authority.

The court should consider whether variation is more appropriate than discharge and must address the practical consequences and alternatives. A public authority cannot unilaterally alter its position while the order remains in force. Where material medical and other evidence is unclear, conflicting, or does not include the responsible decision-maker, the threshold for discharge is not met.

The claimant, a detained patient with autism, learning disability and epilepsy, had obtained a consent order requiring Brighton and Hove Council to complete a planned community service and make it available to him. The order followed judicial review proceedings concerning his care and proposed transfer away from Brighton.

The Council later sought discharge of the order, arguing that the planned accommodation was unsuitable and that the claimant should remain detained in hospital. The claimant sought enforcement. The central issues were the meaning and effect of the consent order, the approach to discharge or variation, and whether the evidence justified releasing the Council from its obligations.

1. The court had jurisdiction, under the liberty to apply provision and as a matter of principle, to enforce, vary or discharge the consent order. The order was not merely a contract and the court was not functus.

2. The Council bore the onus of establishing that discharge or variation was justified. It had to present a clear and cogent case, supported by clear and sufficiently detailed evidence. The public and private interest in finality of litigation was important. The court also had to consider whether variation, rather than discharge, was appropriate and what would happen to the claimant if the order were discharged. The approach in R v North and East Devon HA ex p Coughlan [2001] QB 213 provided a helpful guide, with the additional weight attaching to finality and the fact that the Council was no longer the sole decision-maker.

3. Paragraph 2 of the order required completion of the project plan. Read with paragraph 1, paragraph 1 required the Council to make a service available at the accommodation completed under the project plan. It did not require the Council to place the claimant there, since the Council lacked power to compel that placement. The dates in the order were not of the essence.

4. The Council failed to establish either the asserted September 2002 understanding that the claimant would improve sufficiently for discharge within six to nine months, or a sufficiently clear change in circumstances justifying discharge. The medical evidence was materially unclear and conflicting. In particular, the responsible medical officer had not supported the alleged consensus that the planned service was unsuitable, and the possibility of recommending section 17 leave to the planned unit could not be ignored.

5. The Council’s application for discharge therefore failed. The claimant had shown that further information was required, but had not established that the order should simply be enforced or left unaltered. Both applications were adjourned for further directions. The court rejected the proposed automatic discharge mechanism because the outstanding issues might justify variation rather than discharge.

Not an appeal. The applications arose in the existing judicial review proceedings following the consent order dated 20 September 2002. The court adjourned both the claimant’s enforcement application and the Council’s discharge application for further directions.