Settling a JR: what are the key things to remember?

The Question

What checklist should you go through when settling a judicial review? Look no further…

The Short Answer

The consent order withdrawing the claim should tie up all loose ends in the litigation, so that unresolved issues do not bring the parties back to court.

Frequently forgotten points include:

• Specifying fixed deadlines for agreed actions
• Claimants seeking a payment on account
• The agreed statement justifying the consent order required by PD 54A 16.1

The Long Answer

1. Recitals

• The agreement(s) reached should be recorded in the recitals.
  • • Where it is agreed that a party will perform an action, it is a good idea to specify a fixed deadline. Providing that it will be done “by 4pm on date [x]” brings more certainty than “within 14 days” which varies depending upon when the order is sealed.
    • The recitals should record whether a party will use best endeavours to do X, or in fact do X.
    • Think about whether the party who has agreed to do something should inform the other party/parties when it is done, and if so how and by what deadline.
• Claimants’ representatives should consider the issue of protection for their client if a decision is to be re-taken which could prove to be adverse. For example, if a service is being provided pending a decision about entitlement, will that support remain in place, for e.g. 7 or 14 days, after an adverse decision to allow the Claimant time to make other arrangements?
• Where a decision is to be re-taken, Claimants’ representatives should consider whether the order should specify that new decision-makers take the decision, and whether or not they will see the previous decision when doing so.
• It may be appropriate to record any previous orders (date, judge, and what was ordered) made in the litigation which are relevant to what has been agreed. For example, if an order provides for a future deadline (e.g. written submissions), that order may need to be set aside in the body of the order. That would be ‘teed up’ by recording the fact of that order in the recitals.
• Think about whether there are any outstanding applications which have ongoing importance e.g. anonymity, which may need to be recorded in the recitals, so that they can be determined in the body of the order.
• If a hearing is listed, it can be helpful to record that fact in the recitals.
• If settlement follows a hearing at which any interim orders were made, which have not yet been recorded in a written order, it my be sensible to record those earlier orders in the recitals of the settlement order (for example if a costs order made by the judge deciding permission on the papers was set aside).

2. Body of the order

• The order should record that “the claim is hereby withdrawn”. If the Claimant requires permission to withdraw the claim (e.g. if they are a child) the order should record that “the Claimant has permission to withdraw the claim and the claim is hereby withdrawn”.
• Think about whether the agreement reached means that all grounds should be withdrawn or whether it is more appropriate that certain grounds be stayed pending further action being taken. If the latter, include a clear statement of the circumstances in which that stay will lift.
• Pause for thought before including declarations in the body of the order. The Court will rarely be willing to declare something in a consent order where it would ordinarily have needed to hear the evidence and submissions at a hearing in order to determine. The agreement recorded in the recitals is in most cases sufficient. For example, in an age dispute, where a local authority accepts a young person’s claimed age, the appropriate place to record that is in the recitals rather than a declaration from the Court in the body of an order.
• Any upcoming hearings should be vacated.
• Include provisions to determine any outstanding applications which would be of ongoing importance e.g. anonymity.
• Defendants should consider whether any interim relief orders fall to be discharged.
• In some cases, it may avoid future confusion for any upcoming deadlines to be set aside. This may be especially important where certain grounds are merely being stayed.

3. Costs

• The body of the order will need to record any agreement on costs in order for the litigation to be brought fully to an end. This will include: (a) which party (if any) is to pay costs, (b) the sum or percentage they have agreed to pay, (c) generally the obligation to pay will be limited to “reasonable” costs, (d) whether payment is on the standard or indemnity basis, and (e) provision for detailed assessment if costs are not agreed.
• If no agreement on costs can be reached, provision may alternatively be made for written submissions on costs.
• It is a good idea to include the time and date by which costs will be paid, with 14 or 21 days being a sensible starting point. (Claimants may want to specify the date on which this falls).
• A frequent mistake in legal aid claims is to omit the provision “there shall be detailed assessment of the Claimant’s publicly funded costs”.
• Successful claimants often forget that they may be entitled to ask for a payment on account under CPR 44.2(8). The order could record: “By 4pm on [date], the Defendant shall pay the Claimant’s solicitors the sum of £[X] + VAT, by way of a payment on account of the costs referred to at paragraph [X] above, pursuant to CPR 44.2(8).”
• Unsuccessful claimants should ensure the costs protection provision is included. For example, “The order for costs against the Claimant shall not be enforced without a determination by a costs judge of the amount which it is reasonable for him to pay in accordance with section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and Regulations 15 and 16 of the Civil Legal Aid (Costs) Regulations 2013.”

4. Statement of Matters Relied On

• Parties frequently overlook the requirement in PD 54A 16.1 to file an agreed statement with a draft final order, justifying that order. The requirement is:

“If, prior to judgment being given on a claim the parties agree the terms of a final order to be made disposing of the claim, the claimant shall file 3 copies of the proposed agreed order together with a short, agreed statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on. Both the draft order and the agreed statement shall be signed by all parties to the claim.”

• In practice, this is usually a 1 to 2-page document, summarising the nature of the JR and the key points that had been in issue, and setting out the principled or evidential basis upon which the agreement was reached. This is often drafted by counsel and signed by solicitors.
• When a JR settles shortly after the grant of permission, the Court will not approve an order unless the continuation fee has been paid (currently £770), which is payable within 7 days of permission.

Imogen Proud is a barrister specialising in public law, practising from Monckton Chambers. To contact her clerk Gemma Rawlinson.