BG (by his mother and litigation friend SQ) & Anor (R on the application of) v Suffolk County Council

A court may correct a consequential order where the judgment clearly intended a decision to be quashed but the order omitted that relief. A claim for restitution should be pleaded and raised before the first-instance court. An appellate court will not ordinarily grant restitutionary relief introduced for the first time in a draft order after circulation of its judgment, particularly where it was absent from the claim form, the order below, the respondent’s notice, written submissions and oral submissions. Granting such late relief would be unfair and unreasonable.

The claimants, respondents on appeal, had brought judicial review proceedings concerning a decision of Suffolk County Council dated 12 November 2020. Following Lang J’s decision and order dated 14 December 2021, the Court of Appeal considered consequential matters. The issues were whether the omission of an express quashing order was an error, and whether the respondents could obtain sums allegedly payable had the Council’s decision not been made. The latter claim was raised for the first time in a draft order circulated after the Court of Appeal’s draft judgment.

The Court of Appeal unanimously determined the consequential matters.

1. Quashing order. It was the clear intention of Lang J that the Council’s decision dated 12 November 2020 should be quashed. The omission of that relief from the order dated 14 December 2021 was an error. The Court of Appeal therefore quashed the decision to rectify the omission.
2. Restitutionary relief. The respondents sought payment of sums allegedly payable had the quashed decision not been made. That claim appeared in none of the judicial review claim form, Lang J’s order, the respondents’ notice, the respondents’ skeleton argument or their oral submissions. It was raised for the first time in the draft order circulated after the draft judgment.
3. The proposed relief was, in effect, a claim for restitution. If intended, it should have been pleaded from the outset and raised before Lang J. It was neither fair nor reasonable for the Court of Appeal to grant a new claim at that very late stage. The payment claim was therefore refused. Lord Justice Phillips and Lord Justice Baker agreed with Lady Justice Nicola Davies.

1. Court of Appeal (Civil Division): In this supplemental judgment on consequentials, the court quashed the Council’s decision dated 12 November 2020 and refused the respondents’ late claim for restitutionary payment.
2. Administrative Court: Lang J’s decision and order dated 14 December 2021, cited as [2021] EWHC 3368 (Admin), omitted an express order quashing the Council’s decision. The Court of Appeal treated that omission as an error and rectified it.