MS, R (on the application of) v Manchester City Council

Where parties agree that a judicial review claim should be discontinued, the court may nevertheless issue a brief judgment recording the agreed order where doing so promotes open justice. This is appropriate where non-parties would otherwise be left unaware of orders to which they could obtain access from the court records under the Civil Procedure Rules 1998, rules 5.4C and 5.4D. The court may record the agreed terms without determining the substantive lawfulness of the challenged decision or policy.

The claimant brought judicial review proceedings challenging a decision made by Manchester City Council and a policy concerning the referral of homelessness-assistance applications by single applicants under 25 to a third-party charity. The defendant withdrew the challenged decision, reviewed the policy and brought it to an end. The parties agreed that the judicial review application should be discontinued and that the defendant should pay the claimant’s reasonable costs.

The court decided the matter on the papers. The central issue was whether, despite the agreed discontinuance and absence of any determination on the substantive issues, the court should issue a public judgment setting out the terms of the agreed order.

1. The judicial review application was discontinued by consent. The court expressly determined no substantive issue concerning the challenged decision or policy.
2. The court was nevertheless satisfied that it was appropriate to issue a brief judgment in order to promote open justice. The approach followed that taken in R (BN) v Hounslow LBC [2023] EWHC 3083 (Admin), for the same reasons.
3. Recording the agreed order served to avoid a practical bar to non-parties being left unaware of the order. If they knew to ask, non-parties would have a right of access to orders from the court records under rules 5.4C and 5.4D of the Civil Procedure Rules 1998.
4. No further procedural step was necessary. The court recorded verbatim the agreed recitals and operative provisions. Those provisions recorded the defendant’s withdrawal of the decision, the ending of the policy on 25 September 2023, discontinuance of the permission application, payment of the claimant’s reasonable costs, and detailed assessment of publicly funded legal costs.