KXO & Anor v Devon County Council

A claimant may discontinue judicial review proceedings by filing and serving a notice of discontinuance unless an express exception under CPR 38 applies. Where the claimant is a child or protected party, court approval under CPR 21.10 is required only if the discontinuance amounts to a settlement or compromise. A unilateral discontinuance does not require approval and takes effect on service, subject to the defendant’s right to apply to set it aside and the court’s continuing costs jurisdiction. Had permission been required, the court could consider whether dismissal was preferable where the claim was abusive, repeatedly withdrawn, or totally without merit. An amendment to an education, health and care plan under regulation 28 of the 2014 Regulations gives rise to a statutory appeal under section 51(3) of the 2014 Act, making judicial review inappropriate where that alternative remedy is adequate.

The claimants challenged Devon County Council’s proposed amendments to their education, health and care plans. They alleged that the amendments were made outside a lawful annual review or reassessment process and reduced statutory educational and social care provision. The Council contended that the amendments were provisional, lawful, and subject to a statutory appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The claimants’ litigation friend filed a unilateral notice of discontinuance dated 5 January 2026. The court had to determine whether permission or approval was required under CPR 38 or CPR 21.10, what costs consequences followed, and, if the claim remained extant, whether permission for judicial review should be granted.

1. Discontinuance under CPR 38. Judicial review claims are governed by the ordinary discontinuance provisions in CPR 38. Permission is unnecessary unless an express exception applies, including where an interim injunction has been obtained or an undertaking has been given to the court. The claimants had obtained neither. Under CPR 38.5, the notice therefore brought the proceedings to an end on service on 5 January 2026, subject to costs and any application by the defendant to set it aside under CPR 38.4.
2. Children and protected parties. Although the claim was brought on behalf of children, CPR 21.10 did not require approval. The rule applies to a discontinuance only where it constitutes a settlement or compromise. The notice was unilateral and was not issued pursuant to any agreement. Mere discontinuance therefore required no approval.
3. Possible dismissal if permission had been required. The court noted that, where permission to discontinue or approval is required, the factors identified in Stati v Republic of Kazakhstan (No. 2) include respect for the claimant’s wish to end proceedings, the just and proportionate resolution of litigation, all the circumstances, and conduct which abuses or frustrates the court process. Vale SA v Steinmetz illustrates circumstances in which dismissal may provide greater finality. Those considerations could have justified dismissal here, but that option was unavailable once valid discontinuance took effect.
4. Merits of the proposed judicial review. Had the claim continued, permission would have been refused. Regulation 28 of the Special Educational Needs and Disability Regulations 2014 permitted amendment of an EHCP and generated a fresh statutory appeal under section 51(3) of the Children and Families Act 2014. Following Essex CC v FA, the statutory appeal was an adequate alternative remedy. The claim was consequently bound to fail and would have been certified totally without merit.
5. Costs. The general rule under CPR 38.6(1) applied. The claimants, and practically their litigation friend under CPR 21.12, were ordered to pay the defendant’s costs, to be assessed if not agreed. Enforcement was stayed without the court’s permission.

First-instance judicial review proceedings. No appellate decision is stated in the judgment.