DA (a child), R (on the application of) v Bristol City Council

A settled judicial review claim may become wholly academic where the challenged educational provision has ended and no live remedy remains within that claim. The court will ordinarily decline to reopen such proceedings where setting aside the consent order would confer no practical benefit, including where a proposed damages claim was never pleaded or permitted and was settled with informed consent.

The exceptional jurisdiction to hear an academic claim requires both a sufficient prospect of similar cases and a decision that is not fact-sensitive. Delay alone does not necessarily justify dismissal. Rescission is a private-law equitable remedy and does not readily provide the appropriate route for undoing a consent order settling public-law proceedings.

The claimant, a child with severe autism, challenged Bristol City Council’s alleged failure to provide special educational provision required by his education, health and care plan. The judicial review claim was settled by a Tomlin order approved by Steyn J on 25 November 2022.

The claimant later applied to set aside that order, alleging fraud, misrepresentation and concealment of material information. The court was directed to decide whether the application required fresh rescission proceedings and whether it should be dismissed because the underlying claim had become academic, no benefit would result, delay had occurred, or rescission was unavailable after benefits had been received.

1. The application was dismissed. The underlying judicial review claim was completely academic and moot. Since September 2024 the claimant had attended college, and the educational obligations in the Tomlin order had ceased to apply. Any past failure to provide education could not realistically obtain permission if brought afresh in those proceedings.
2. The court applied the two criteria identified in R (Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs: an academic claim may exceptionally be heard where similar cases exist or are anticipated and the decision would not be fact-sensitive. Neither criterion justified hearing this claim.
3. Reopening the claim would confer no practical benefit. A possible claim for damages under article 1 of the First Protocol to the Convention had never been pleaded with the court’s permission and had been settled with the judicial review claim. Any proposed benefit from correcting evidence in separate Court of Protection proceedings was unavailable because the claimant’s father did not act there as litigation friend and had potentially conflicting interests.
4. Delay did not independently justify dismissal. The claimant had needed time to collate and compare the video evidence, and the application would not have been dismissed on delay grounds alone.
5. The court did not accept that rescission was necessarily the appropriate or exclusive remedy. The benefits received included educational provision required under the statutory scheme, and public-law judicial review remedies did not readily mix with private-law rescission. If the order had been set aside, the likely consequence would have been live judicial review proceedings concerning the claimant’s educational rights.
6. The court would also have declined to dismiss the application as Jameel abuse. The education of a child was not trivial; the claim was dismissed because it had become academic.

First-instance decision. The judgment records that the underlying judicial review claim had been settled by a Tomlin order approved by Steyn J on 25 November 2022 and sealed on 29 November 2022. The present court dismissed the later application to set aside that order.