When A Judicial Review Claim Is Discontinued | Can The Defendant Recover Costs Beyond The Acknowledgment Of Service Stage?

The High Court awarded the defendant local authority its full costs of discontinued judicial review proceedings, rejecting limitation to the acknowledgment of service stage and holding that the litigation friend bore personal liability under CPR 21.12.

KXO & OYW (BY SZO) V DEVON COUNTY COUNCIL [2026] EWHC 203 (ADMIN)

In KXO and OYW v Devon County Council, two children challenged by judicial review the Council’s decisions to amend their Education, Health and Care Plans under regulation 28 of the Special Educational Needs and Disability Regulations 2014. Their mother acted as litigation friend. Following a protracted procedural history involving applications certified as totally without merit and repeated complaints about reasonable adjustments despite court-ordered special measures, the litigation friend filed a Notice of Discontinuance on 5 January 2026. At the hearing before Paul Bowen KC, sitting as a Deputy Judge of the High Court, the court held that no permission was required under CPR 38.2 or CPR 21.10, as the discontinuance was unilateral. Applying CPR 38.6(1), the court ordered the litigation friend to pay all the Defendant’s costs — expressly declining to limit recovery to the acknowledgment of service stage on a Mount Cook basis. The litigation friend was held personally liable under CPR 21.12 pursuant to her signed certificate of suitability. Enforcement required the court’s permission.

The Litigation Friend must ... be taken to be aware of her personal liability to pay a costs order made against the Claimants by virtue of CPR 21.12, not least as she signed a ‘certificate of suitability of litigation friend’ on 30 May 2023 which contains a statement as follows: ‘I undertake to pay any costs which the above named claimant may be ordered to pay in these proceedings subject to any right I may have to be repaid from the assets of the claimant’.... In those circumstances the Claimant (and therefore the Litigation Friend) is ordered to pay all the Defendant’s costs of the claim, not simply the cost of preparing the acknowledgment of service and summary grounds on a Mount Cook basis, to be assessed if not agreed.

Citations

Stati v. Republic of Kazakhstan (No. 2) [2019] 1 WLR 897 Set out the factors relevant to whether permission should be granted to discontinue a claim, including respect for a claimant’s wish to end proceedings and consideration of conduct aimed at abusing or frustrating the court process. Vale SA v Steinmetz [2022] EWHC 343 (Comm) Recognised that a dismissal may be preferable to discontinuance where it brings finality and is of indirect benefit to a defendant by evidencing that claims were adjudicated and not merely withdrawn. Essex CC v FA [2019] UKUT 38 (AAC) Confirmed that amendments to EHCPs under Regulation 28 trigger a fresh right of appeal to the First-tier Tribunal, indicating an alternative remedy to judicial review. Sayers v Smithkline Beecham PLC [2005] PIQR P8 Held that discontinuance by a child or protected party does not require court approval under CPR 21.10 unless it constitutes a settlement or compromise of the claim.

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Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

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Key Points

The general rule under CPR 38.6(1) is that a claimant who discontinues is liable for the defendant’s costs incurred up to the date of discontinuance, and the court will order otherwise only where a good reason for departure is demonstrated. [52]
A litigation friend who signs a certificate of suitability undertakes personal liability, pursuant to CPR 21.12, to pay any costs which the child or protected party claimant is ordered to pay, subject to any right of reimbursement from the claimant’s assets. [54]
The fact that a party is a litigant in person, or has disabilities requiring reasonable adjustments, does not in itself exempt them from the ordinary costs consequences of the Civil Procedure Rules or constitute a good reason to depart from the default costs rule following discontinuance. [53]
When considering whether to enforce a costs order against a litigation friend personally, the court may, in light of their personal circumstances, order that the costs are not to be enforced without the court’s permission. [55]
Unreasonable conduct in the litigation, including a failure to comply with pre-action protocols, bringing unmeritorious applications, and creating procedural uncertainty, can reinforce the application of the default costs rule upon discontinuance. [49, 53]

"I have had regard to the fact the Litigation Friend is unrepresented, that she disabled and the need to make reasonable adjustments to ensure fairness. However, the fact the Litigation Friend is a litigant in person does not exempt her from compliance with the CPR and Practice Directions: Administrative Court Guide, 4.2.1. The Administrative Court Guide is designed to be accessible to litigants in person and I must assume the Litigation Friend is aware of the costs consequences of discontinuing the claim under CPR 38.2."

Key Findings In The Case

The Claimants, by serving a Notice of Discontinuance on 5 January 2026, became liable under CPR 38.6(1) for the Defendant’s legal costs incurred up to that date, and no application was made to persuade the court to depart from that default rule [52].
The Claimants’ litigation friend, SZO, signed a certificate of suitability undertaking personal liability for the Claimants’ costs exposure in accordance with CPR 21.12, thereby making herself personally liable for the Defendant’s costs subject to any right of reimbursement from the Claimants’ assets [54].
No good reason was demonstrated by the Claimants for the court to depart from the default costs rule under CPR 38.6(1), and the litigation friend’s status as an unrepresented and disabled party was held insufficient to exempt her from adverse costs consequences [53].
The judge held that although the litigation friend’s conduct had been unreasonable throughout the proceedings and would normally reinforce the application of the default costs rule, in light of her personal circumstances, the order for costs would not be enforced without the court’s permission [55].
The litigation friend’s unreasonable litigation conduct—including repeated procedural missteps, non-compliance with court orders, and unfounded complaints—was found to have increased the costs and justified the imposition of the default costs liability on discontinuance [49, 53].

"I reach that conclusion with some regret because this is a case where, if permission or approval to discontinue the claim was required under CPR 38.2 or 21.10 or an application had been made to set aside the Notice of Discontinuance, there are good public interest reasons for dismissing the claim rather than permitting its discontinuance. The Litigation Friend’s conduct in this and the other claims to which I have referred, as set out above, has been unreasonable and has caused substantial costs to be incurred by the Defendant and significant expenditure of Court resources, both judicial and administrative."

The High Court’s decision in KXO and OYW v Devon County Council [2026] EWHC 203 (Admin) confirms that discontinuance of a judicial review claim triggers full costs liability under CPR 38.6, not merely costs limited to the Mount Cook stage.

Background

The claim was a judicial review brought on behalf of two children, KXO and OYW, by their mother, SZO, acting as their litigation friend. The Claimants challenged decisions made by Devon County Council on 25 May 2023 to propose amendments to their Education, Health and Care Plans (EHCPs) under regulation 28 of the Special Educational Needs and Disability Regulations 2014. The Claimants contended the Council acted unlawfully by amending the plans outside a formal review process. The Council maintained the decisions were lawful, provisional, and that an adequate alternative remedy existed via a statutory appeal to the Special Educational Needs and Disability Tribunal.

The procedural history was protracted and marked by considerable difficulties. The claim was issued on 30 May 2023 without a pre-action letter, in breach of the Pre-Action Protocol for Judicial Review. An application for interim relief was refused following a hearing on 8 June 2023 before DHCJ Mathew Gullick KC. The litigation friend, a disabled litigant in person diagnosed with Autism, ADHD, Agoraphobia and partial deafness, subsequently engaged in a pattern of conduct that included filing then withdrawing applications to discontinue the claim, making repeated complaints about an alleged failure to provide reasonable adjustments, failing to respond to court enquiries, and making applications that were certified as totally without merit. The court had, on multiple occasions, directed special measures to facilitate her participation, including remote attendance, permission for a supporter, and regular breaks.

On 5 January 2026, the litigation friend filed and served a Notice of Discontinuance. The court listed a hearing to determine, amongst other things, whether court permission or approval was needed for the discontinuance under CPR 38 or CPR 21.10 and to deal with costs. At the hearing on 3 February 2026, the litigation friend did not attend, although the hearing was available by CVP with the special measures previously directed. The court found that the Notice of Discontinuance was valid and had effectively ended the claim on 5 January 2026. Court approval was not required under CPR 21.10 because the discontinuance was unilateral and did not constitute the settlement or compromise of the claim. The only remaining issue was the liability for costs.

Costs Issues Before the Court

The primary costs issue was the financial consequence of the Claimants’ discontinuance. The general rule under CPR 38.6(1) is that a claimant who discontinues is liable for the defendant’s costs incurred up to the date of discontinuance, unless the court orders otherwise. The court needed to determine whether this default rule should apply. A related question was whether any costs award should be limited to the acknowledgment of service and summary grounds stage on a Mount Cook basis, or whether the full costs of the proceedings were recoverable. A secondary issue was the personal liability of the litigation friend for any costs order made against the child Claimants, governed by CPR 21.12.

The Parties’ Positions

The Defendant’s Position: The Council observed that by filing the Notice of Discontinuance, the Claimant had triggered liability for the Defendant’s costs under CPR 38.6(1). The Defendant made no positive application for costs but noted that the Claimant had made no application to reverse the general rule. The Defendant accepted that, given the litigation friend’s personal circumstances, any costs order should not be enforceable without the court’s permission.

The Claimants’ Position: The litigation friend did not attend the hearing and made no formal submissions on costs. In her witness statement dated 5 January 2026, she acknowledged that the Defendant’s costs were “highly likely to be passed on to me by way of a costs order.” No application was made to demonstrate a good reason for departing from the CPR 38.6 default rule.

The Court’s Decision

The court ordered that the Claimants, and therefore the litigation friend, pay all the Defendant’s costs of the proceedings — not simply the cost of preparing the acknowledgment of service and summary grounds on a Mount Cook basis — to be assessed if not agreed. The order was not to be enforced without the court’s leave.

In reaching this decision, the court applied the clear terms of CPR 38.6(1). As the Claimants had discontinued and had made no application to displace the general rule, it applied. The court had regard to the fact that the litigation friend was unrepresented and disabled, and the need to make reasonable adjustments to ensure fairness. However, it found that being a litigant in person does not exempt a party from compliance with the Civil Procedure Rules and Practice Directions, citing the Administrative Court Guide 2025 at paragraph 4.2.1. The court was satisfied that the litigation friend must be taken to be aware of the costs consequences of discontinuing under CPR 38.6, noting the Administrative Court Guide is designed to be accessible to litigants in person.

On the issue of personal liability, the court referred to CPR 21.12 and the certificate of suitability of litigation friend signed on 30 May 2023. This certificate contained an undertaking in the following terms: “I undertake to pay any costs which the above named claimant may be ordered to pay in these proceedings subject to any right I may have to be repaid from the assets of the claimant.” The court held that the litigation friend must be taken to be aware of her personal liability, a point she herself had acknowledged in her 5 January 2026 statement.

The court expressly declined to limit recovery to the Mount Cook basis, ordering all of the Defendant’s costs pursuant to CPR 38.6(1) and noting that no application had been made to displace the default rule. The judgment separately records a protracted procedural history involving multiple interlocutory applications, directions hearings, and the Defendant’s attendance at the final hearing by counsel — context which underscores why the costs exposure following discontinuance extended well beyond the acknowledgment of service stage.

Finally, the court recorded — though it was not in a position to act upon it — that had it retained jurisdiction, it would have refused permission to apply for judicial review and dismissed the claim as totally without merit. The court found the Claimants had an adequate alternative remedy by way of statutory appeal to the SENDisT. The court further indicated it would have been strongly inclined to refer the matter for consideration of a general civil restraint order, but was precluded from doing so by the valid discontinuance. By virtue of CPR 38.7, the Claimants will not be permitted to bring another claim arising from the same or similar facts without the court’s permission.

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