THE FIRST TIME YOU MAKE A CLAIM FOR DAMAGES – SHOULD NOT BE IN THE DRAFT ORDER AFTER THE COURT OF APPEAL HEARING

July 26, 2022 · by · in Appeals, Damages

There is an interesting short judgment of the Court of Appeal in BG & Anor, R (On the Application Of) v Suffolk County Council (Consequentials) [2022] EWCA Civ 1053 relating to an attempt by the successful party to put an award for damages in a draft order. This was, the Court of Appeal said, a bit too late…

“The claim was raised for the first time in the respondents’ draft order for this court following circulation of the draft judgment to the parties. It is, in effect, a claim for restitution. If the intention was to make such a claim it should have been pleaded from the outset and raised before Lang J. It was not. It would be neither fair nor reasonable for this court to grant relief upon a new aspect of the respondents’ case at this very late stage.”

THE CASE

The Court of Appeal had earlier decided an appeal against the appellant local authority in relation to payment for respite care.

THE DRAFT ORDER

The draft order in the Court of Appeal included a proposal that the local authority pay the sums which had not been paid due to the decision which has been successfully reviewed.

THE COURT OF APPEAL JUDGMENT ON THIS ISSUE

    1. Relief sought by the respondents – payment of sums which would allegedly have been paid to each respondent had the decision of 12 November 2020 not been made (paragraph 3 of draft order).
This claim was not included in:
(i) The judicial review claim form;
(ii) The order of Lang J dated 14 December 2021;
(iii) The respondents’ notice in these proceedings;
(iv) The respondents’ skeleton argument in these proceedings nor in the oral submissions made to the Court of Appeal.
  1. The claim was raised for the first time in the respondents’ draft order for this court following circulation of the draft judgment to the parties. It is, in effect, a claim for restitution. If the intention was to make such a claim it should have been pleaded from the outset and raised before Lang J. It was not. It would be neither fair nor reasonable for this court to grant relief upon a new aspect of the respondents’ case at this very late stage.
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