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

The Claimant seeks permission to bring a judicial review of an age determination, made on 11 June 2025 by Manchester City Council (“theCouncil”), which concluded that he was 22 years old (“the determination”). The Claimant also alleges failures by the Council to carry out a Merton-compliant age assessment and to identify and treat him as a potential victim of trafficking in breach of Art. 4 of the European Convention on Human Rights (“the ECHR”).

The claim came before me on Wednesday 3 June 2026 to decide the Claimant’s renewed application for permission; the appointment of Ms Taran Cheema as the Claimant’s litigation friend and permission for the Claimant to rely on Ms Cheema’s statement (dated 29 May 2026). The Claimant’s application for interim relief, made in his Detailed Grounds, was not pursued.

As a result of developments on Friday 29 May 2026 (discussed in paras. 22 and 23 below), at the hearing the Council applied to strike out the claim and sought a wasted costs order against Irwin Mitchell LLP (“Irwin Mitchell”), the Claimant’s solicitors. To that end, the Council had lodged a chain of inter partes e-mail correspondence (which I had seen), a skeleton argument, additional authorities and a supplemental bundle (which I had not seen). The Council’s applications were contained in its skeleton argument but no application notices had been issued. In addition to the parties’ written submissions, the supplemental bundle contained the second statement of Elizabeth Davis (the solicitor now with care and conduct of the Claimant’s claim) (dated 2 June 2026) which exhibited, among other materials, a chronology of attempts to make contact with her client.

The renewal hearing had been allocated the usual time estimate of 30 minutes which, regrettably, neither party had sought to change to ensure that all live applications could be decided on the day.

I had the opportunity to read the Council’s skeleton argument briefly at the start of the hearing. I also heard submissions from Mr Ollie Persey, counsel for the Claimant, and Mr Francis Hoar, counsel for the Council, on the parties’ applications. At the end of the hearing, I reserved judgment to allow me to consider the supplemental bundle, the Council’s skeleton argument and its additional authorities and because there was insufficient time, in light of the other cases in my list, to give an ex tempore decision.

This judgment therefore deals with five applications which are best considered in the following order:

The Claimant is a Sudanese national. On his own case, he was born on 1 May 2008.

Following the outbreak of civil war in Sudan in 2023, it is said that the Claimant fled to Libya where he was imprisoned, forced to work in prison and had hot water poured on him thereby causing scarring. The Claimant later broke out of prison and worked as a labourer in order to pay his passage to Italy. In December 2024, he entered France and on 31 May 2025, he reached Dover.

In an interview on his arrival in the United Kingdom, the Claimant told officials that he was born on 1 January 2008 and was therefore 17 years old. On 2 June 2025, he was referred by the Home Office to the National Referral Mechanism (“the NRM”) and on 4 June 2025, the Claimant received a positive reasonable grounds decision. That day, he was moved to Manchester.

On 11 June 2025, an age assessment was carried out by two social workers from the Council, the outcome of which was that the Claimant was considered to be over the age of 18 and most probably 22 years old. For that reason, the Claimant was not provided with the care and support that the Children Act 1989 requires to be provided to a child. He was, however, provided with accommodation in Manchester by the Secretary of State for the Home Department (“the Secretary of State”).

At some point, the Claimant later left Manchester to live with a friend in Glasgow with whom he had travelled to this country. As discussed below, the Claimant has not been in contact with his solicitor since January 2026. It is not clear whether the Secretary of State has made a conclusive grounds decision in the Claimant’s case.

On 16 September 2025, the Claimant issued proceedings in this court challenging the determination. Three grounds are advanced:

On 6 October 2025, the Council filed and served its Acknowledgement of Service and Summary Grounds of Resistance. For the reasons set out below, the Council’s case is that the Claimant has no arguable case and so permission should be refused. In particular, it is submitted that the determination was lawfully made based on the material before the Council’s assessors which, quite properly, included an assessment of the Claimant’s appearance.

On 14 November 2025, Mr C.M.G. Ockelton, sitting as a Judge of the High Court, refused permission (“the refusal order”). The judge concluded that, although the hurdle for permission in an age assessment case is low, the Claimant had not, for two principal reasons, cleared it. First, there was no challenge to the initial assessment, carried out by Home Office officials on the Claimant’s entry into the United Kingdom, that he was not a child. That assessment was important because it binds the exercise of the Secretary of State’s immigration functions including those relating to housing the Claimant as an asylum-seeker. In those circumstances, the starting point for the Council must be the Home Office assessment. Absent any challenge, it is not properly arguable that the Council was entitled to treat the Claimant as younger than the Home Office assessment found him to be. Secondly, the reasonable grounds decision added nothing: the duties to a victim of modern slavery (which the Claimant has not yet proved) are the same whatever the victim’s age. Having refused permission, the judge made no order on the anonymity and interim relief applications.

No renewal application was made within seven days of service of the refusal order and so the court’s file was closed.

On 5 January 2026, Ms Davis received an e-mail from the Claimant. For present purposes, the e-mail said that:

“I would like to inform you that I am currently going through extremely difficult health and psychological circumstances. I am suffering from severe depression, persistent anxiety, intense fear, and a loss of my sense of safety, and I have entered a state of psychological shock as a result of what I am experiencing.

I have completed the PHQ-9 depression severity assessment, and the results indicate that I am experiencing very severe depression. I am not receiving treatment at the present time; however, I am making every effort to seek appropriate medical and psychological support to overcome this painful phase.

Based on the above, I respectfully request your consideration of temporarily suspending any legal procedures or requirements related to me until I regain a reasonable level of stability and improvement in my health, as my current condition does not allow me to follow up effectively.

I appreciate your understanding and support. I am attaching the report of the assessment I completed, which shows the severity of my depression, in the hope that it will help clarify my current medical and psychological condition more accurately.”

Unfortunately, the Claimant did not attach the assessment report to which his e-mail referred or, alternatively, it was not included in the supplemental bundle.

Ms Davis, the Claimant’s solicitor, replied to the Claimant’s e-mail on 20 January 2026. Her response materially stated that:

“We understand that you are unable to engage with legal proceedings until your mental health improves. We would just like to re-assure you that, at the current stage, we do not anticipate needing any input from you for a few months. We are currently awaiting the court’s response and are waiting for them to decide whether the case will progress to a full hearing/to the Upper Tribunal.

To avoid prejudicing your position in the legal proceedings we advise waiting for the court’s response. Once we receive this, we will then check in with you to see how you are and how you would like to proceed. Hopefully, this will give you time for your condition to improve, but if not them we will be happy to ask the court to pause the proceedings at that stage.

Please let me know if anything is unclear, or if you have any other questions. Please also confirm whether you would be happy for us to wait for the court’s response and check in again with you then.”

In March 2026, Ms Davis informed the Council of her intention to apply to renew the permission application. In support, she prepared a witness statement (dated 5 March 2026). Most of it is concerned with the question whether and, if so, why the refusal order had not been identified while the previous case-holder was away from work on long-term sick leave. However, in para. 3 Ms Davis summarised the contact that she had had with the Claimant thus:

“On 5 January 2026 our client emailing us to inform us that he was experiencing very poor mental health and was struggling to engage in these proceedings. I was conscious of the court being busy and that expedition decisions can take several months. I therefore did not contact the Manchester Administrative Court at this time.”

No renewal application was properly made until 9 April 2026 when the Claimant asked for the claim to be reinstated and a renewal hearing ordered. Unfortunately, the delay was caused by Ms Davis not appreciating that a successful application to reinstate the proceedings was required before the renewal application could be listed. Section 10 of the application notice said that Form 86b was not lodged within seven days of service of the refusal order because the solicitor then with conduct was on long-term sick leave. It also said that “the Claimant/litigation friend was unaware of the refusal of permission until 3 March 2026. Active steps were taken urgently to apply for a renewal hearing upon learning of this decision.”

At this stage, I should note four points: first, the Claimant himself was wholly unaware of the refusal order because he had not been in contact with Ms Davis since January 2026, a fact which was not mentioned; secondly, no litigation friend had been appointed which was clear from the refusal order; thirdly, neither Ms Davis’ statement of 5 March 2026 nor the application notice of 9 April 2026 referred to the absence of communication from the Claimant since January 2026 or, pertinently, his express wish for a stay; finally, Ms Davis’ statement did not say that the Claimant lacked capacity or raise any concerns that he may do so.

On 24 April 2026, the Claimant’s application to reinstate the claim was allowed by Christopher Kennedy KC, sitting as a Deputy Judge of the High Court, and a renewal hearing was listed to be heard on 3 June 2026 (“the April 2026 Order”).

On Friday 29 May 2026, the Claimant’s solicitor sent Mr Persey’s skeleton argument to the Council together with Ms Cheema’s statement of the same date. As to the latter, notwithstanding the absence of any order appointing her, Ms Cheema twice stated that she was the Claimant’s litigation friend. She also summarised the history of her contact with the Claimant. In short, Ms Cheema had last heard from him in December 2025. Her monthly calls and WhatsApp messages to the Claimant had not been answered. Absent any alternative contact details or those of the Claimant’s friends, Ms Cheema had been unable to make contact with him although she was making further inquiries of the Home Office and Migrant Help to find other ways of contacting the Claimant.

On Tuesday 2 June 2026, Mr Adam Woodley, the Council’s solicitor, sent an e-mail to Ms Davis in which four points are relevant:

Since at least the April 2026 Order, the Claimant has been anonymised in these proceedings but no anonymity order has been made. Bearing in mind the subject-matter of the claim, it is appropriate to make an order and so to regularise matters.

The Council does not object to the applications and the content of the two statements assist the court in understanding the dealings of Ms Cheema and Ms Davis with the Claimant. In the circumstances, it is consistent with the overriding objective to grant the Claimant permission to rely upon the statements.

Mr Persey submitted that a litigation friend was essentially justified on two grounds: the Claimant was highly vulnerable and Ms Cheema’s concerns about the latter’s well-being. He also submitted that, on his own account, the Claimant had been a child until 1 May 2026; the Council had not previously objected to the appointment of a litigation friend; it was open to the court to appoint a litigation friend retrospectively and Ms Davis had had no opportunity to assess the Claimant’s capacity due to the lack of contact. Mr Hoar responded that there was no evidence that the Claimant was vulnerable to any degree; the Claimant was now an adult and there was no evidence of his capacity at all; no litigation friend had been appointed notwithstanding Mr Persey’s contrary submission; and in any event the evidence is that he does not wish to pursue the claim.

A litigation friend is required if the Claimant is a child or a protected party. On his own case, the Claimant is now 18 years old and so he is no longer a child. For the purposes of CPR 21, a “protected party” is a party, or an intended party, who lacks capacity to conduct the proceedings and “lacks capacity” means lacks capacity within the meaning of the Mental Capacity Act 2005 (“the 2005 Act”): CPR 21.1(2)(d) and CPR 21.1(2)(c) respectively.

Although there are understandable concerns about his welfare, the decisive point is that there is no evidence that the Claimant presently lacks capacity for the purposes of the 2005 Act. Neither Ms Davis nor Ms Cheema has had any contact with the Claimant for more than five months and so the current state of his health is not known. The Claimant’s e-mail of 5 January 2026 said that he was suffering from severe depression, anxiety, fear and a loss of his sense of safety but there is nothing to suggest that he lacked capacity in January or lacks it now. On the contrary, the e-mail gave a lucid explanation of his health and his wish for a temporary pause to this claim. On the back of the Claimant’s e-mail, Mr Persey submitted that the Claimant was “highly vulnerable”. That may be so and I recognise that the absence of contact for more than five months adds weight to the concerns about his mental health. However, there is no present or reliable evidence that the Claimant lacks capacity. Secondly, Ms Cheema’s concerns do not amount to evidence that the Claimant lacks capacity. Although she has longstanding experience of acting as a litigation friend to those whose age is disputed and who are vulnerable, the obvious difficulty is that Ms Cheema has had no contact with the Claimant for six months and so she cannot provide an assessment of capacity (assuming, of course, she has the qualifications and expertise to do so.) In short, I do not under-estimate Ms Cheema’s worries or doubt their sincerity but they do not amount to evidence of the Claimant’s current capacity for the purposes of the 2005 Act.

Should Ms Davis or Ms Cheema make contact with the Claimant and if an appropriately qualified and experienced clinician confirms a lack of capacity following an assessment of him, an application to appoint a litigation friend should be swiftly made. For that reason, the application is adjourned generally with permission to restore.

The basis of the Council’s application to strike out the claim is three-fold: first, in R (Nelson) v. Parole Board for England and Wales [2017] EWHC 728 (Admin) the court considered the circumstances in which a claimant in judicial review proceedings should be treated as having ceased to pursue the claim. The absence of any communication from the Claimant to his solicitor for many months (as here) is evidence that the former has decided not to pursue his claim. Secondly, to continue proceedings which the Claimant has no intention of pursuing may constitute an abuse of the court’s process: Nelson [2017] EWHC 728 (Admin), para. 9; The Owners and/or Bailees of the Cargo of the Ship Panamaz Star v. The Owners of the Ship Auk (“The Auk”) [2013] EWHC 4076 (Admlty); Arbuthnot Latham Bank Ltd v. Trafalgar Holdings [1988] 1 WLR 1426, 1437. Thirdly, the Claimant has sought to part company with his solicitors; he instructed them to discontinue; he has not been in contact with Ms Davis for five months; he is now an adult; there is no evidence that he lacks capacity and there is no good reason to doubt his capacity to litigate. For these reasons, the claim should be struck out.

Mr Persey submits that the Claimant has identified grounds of challenge which are at least arguable. It would be unjust to strike out the claim without allowing Ms Davis and Ms Cheema a final opportunity to locate the Claimant; to make contact with him; to ascertain his current health and, if possible, to take his instructions. To that end, Mr Persey invited the court to consider permission and, if granted, to stay the claim for, say, four weeks to allow those attempts to be made. If by the end of the stay, the Claimant had not confirmed his intention to proceed, the claim could be discontinued.

Although he emphasised that it was very much a “fall-back” position, Mr Hoar submitted that if the court were not persuaded to strike out the claim but was satisfied that the Claimant had shown arguable grounds of review, a stay, as suggested by Mr Persey, would be a pragmatic response to the position. That said, Mr Hoar contended that the proper order, absent confirmation from the Claimant that he wishes to continue, would be dismissal, not discontinuation, of the claim.

CPR 3.4(2)(b) materially provides that the court may strike out a statement of case if it appears to the court that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.

The twin issues of delay and abuse were considered in Nelson and The Auk. As to the former, the two authorities make it clear that there are no hard and fast rules. The court has to make a broad judgment having regard to all the circumstances and the justice of the case. The relevant circumstances may include the length of, explanation and responsibility for the delay; whether the other parties have been prejudiced and, if so, how it can be compensated and whether the delay is such that it is no longer possible to have a fair trial. In considering what is the just and proportionate order to make, the court should have regard to the alternative sanctions to that of striking out. For these reasons, the application is refused.

As to the latter, it is well established that to commence or to continue proceedings which the claimant has no intention of bringing to a conclusion may constitute an abuse: Grovit v. Doctor [1997] 1 WLR 640. Inordinate and inexcusable delay alone does not amount to an abuse but it may do so if it involves a wholesale disregard for the rules of court with a full awareness of the consequences: Habib Bank Ltd v. Jaffer (The Times, 5 April 2000).

First, although the Claimant has not been in contact with Ms Davis or Ms Cheema for five months or so, his e-mail of 5 January 2026 explained that, at that time, he was suffering from depression, anxiety, fear and a loss of a sense of safety which provides a possible explanation for the absence of communication since then. The facts of this case are therefore very different from those in Nelson’s case where there was no suggestion at all that the claimant was suffering from any condition which may have affected his ability to prosecute the claim. Secondly, the Claimant’s e-mail did not instruct his solicitors to discontinue the claim. In fact, he effectively asked for a stay of proceedings until his health allowed him to participate. Thirdly, there is no suggestion that a fair trial is no longer possible because of the delay. Fourthly, given the Claimant’s health in January 2026, the reasonable concerns about his well-being and the absence of contact for five months the better course is to decide permission and, if granted, to stay the claim until 10 July 2026 to allow Ms Davis and Ms Cheema to locate the Claimant and, if possible, to take his instructions on whether he wishes to continue with the proceedings. If they cannot find him or he confirms that he does not wish to continue, the claim shall be dismissed without further order. That course is the only point on which the parties agreed (although it was very much the Council’s fall-back position). It also strikes a balance between the evidence of the Claimant’s ill health in January 2026, its possible consequences and giving his advisers a final opportunity to determine his intentions (and potentially their professional position) on the one hand and the legitimate interest in not permitting the litigation to grow stale on the other hand should the Claimant not been found or he decides not to pursue matters further. Given the distinctive facts of this case, the parties have permission to apply during the stay. For these reasons, I am not persuaded that it is just or proportionate to strike out the claim at this stage.

Mr Persey contends that he has shown at least an arguable case and the refusal order failed to engage with the substance of his client’s arguments. In summary (and reflecting the priority given to the points in submissions):

In summary, the Council invites the court to refuse permission for five principal reasons:

As exemplified by the summary of the parties’ cases set out above, there is a fundamental dispute between the parties about whether it was appropriate for the Council’s assessors to have determined the Claimant’s age essentially on the basis of his appearance. That dispute has a number of elements including (but not confined to) the adequacy of the Council’s consideration of the effect of the Claimant’s experiences in a Libyan prison on his appearance and the weight to be attached the assessment carried out by Home Office officials on 1 June 2025. In relation to the latter, it is relevant that it was not a National Age Assessment Board determination that would have been binding on the Council. There is no “knock out” blow to the Claimant’s case either on the law or on the facts that would justify refusing permission. To use the language of FZ, it cannot be said that, if the Claimant’s case is taken at its height, it could not properly succeed at a contested hearing. I am therefore satisfied that the Claimant has cleared the threshold of arguability. Consequently, he has permission to pursue the three grounds of review.

The Council submits that Irwin Mitchell should show cause why the firm should not be ordered to pay the wasted costs of the renewal application on the basis that their behaviour was improper and/or unreasonable as it constituted a significant breach of their professional duty and/or is one that permits no reasonable explanation. The Council relies upon four particulars of alleged impropriety and unreasonable conduct. It is said that Irwin Mitchell failed:

Mr Persey’s response was essentially two-fold: there was no basis upon which to impugn Irwin Mitchell’s conduct. His instructing solicitors have done everything they reasonably could to communicate with the Claimant and there were reservations about waiving privilege in relation to the Claimant’s e-mail of 5 January 2026. In the end, it was disclosed so that the court and the parties were aware of the position. He also asked the court not to allow an unfair allegation to hang over Irwin Mitchell and to dispose of the application sooner rather than later.

In Gray v. Going Places Leisure Travel Ltd [2005] EWCA Civ 189; [2005] CP Rep. 21; [2005] 3 Costs LR 405, the Court of Appeal gave guidance about the approach that should be adopted in relation to applications for wasted costs under CPR 46.8. Four elements of that guidance are relevant: first, the making of a wasted costs order as to who should bear the costs and on what basis, in respect of the proceedings are in principle part of the overriding order made by the court at the end of the trial; secondly, absent a good contrary reason, the costs of the proceedings should be dealt with by the tribunal which determines the issue which disposes of the case immediately after the judgment disposing of the case; thirdly, where a wasted costs order is sought in respect of an interlocutory matter before trial it is often better for that application to be made only after the trial; fourthly, it is not, however, mandatory that a wasted costs application should only be made at the end of the trial. In many cases a party considering an application for a wasted costs order will ask the judge for time to consider whether to make such an application and, if it is made, the normal course is for the court to give directions in relation to the disposal of the application rather than to deal with it straightaway.

I am not persuaded that it is appropriate to make any substantive order on the Council’s application at this stage. As the Court of Appeal found in Gray, the general (but not inflexible) rule is that a wasted costs application should be dealt with at the end of the proceedings as part of the overarching order made by the court once a case has concluded. That principle is well-established and was approved by the Court of Appeal in Ridehalgh v. Horsefield & another [1994] EWCA Civ 40. There is no good reason not to follow the usual course and none is identified by the Council. The application is therefore adjourned generally with permission to restore. Should the Council wish to pursue the application, it may be renewed at the end of the proceedings.

Following the circulation of the draft judgment on 10 June 2026, Mr Persey informed me that an e-mail (sent on 9 June 2026 at 11.51 p.m.) had been received by Ms Davis from the Claimant’s e-mail address. The e-mail was unsigned and the sender’s identity unknown. It said that:

“Hello

I am a friend of [the Claimant], and I would like to explain his current situation. For the past six months, [the Claimant] has been suffering from severe psychological trauma following the loss of all of his immediate family members. He also lost his uncle, who had been his main source of support and communication during the last period.

Due to his young age, he has found it extremely difficult to cope with these devastating losses. His mental health has been seriously affected, and for several months he has withdrawn from others and has not been speaking to anyone. He is experiencing significant difficulties communicating and engaging with people because of his psychological condition.

[The Claimant] is currently receiving treatment and support from a psychiatrist.

In light of his circumstances, I kindly request that his case be temporarily suspended that communication be made with the Court and the Home Office until his mental health improves and he is medically fit to participate in any proceedings or requirements.

Thank you for your understanding and consideration.”

In her covering e-mail to the Court, sent at 10.02 a.m. on 10 June 2026, Ms Davis suggested that if permission is granted, “it may be sensible to order a stay of 3 months before the Defendant is required to file a detailed grounds of defence. This would allow the Claimant a period of time to recover and avoid the Defendant incurring costs if the Claimant does not recover.”

The two e-mails were sent to Mr Woodley who replied at 1.43 p.m. on 10 June 2026. He made three points: first, there was no clear basis on which to conclude that the e-mail of 9 June 2026 was reliable because the sender’s identity, the nature of the sender’s relationship with the Claimant or how the sender had access to the Claimant’s e-mail account were unknown. There was also no information about whether the sender was in direct contact with the Claimant or how information about the Claimant’s condition had been obtained. Secondly, Ms Davis should be required to confirm the steps taken to verify the sender’s identity and that the contents accurately reflect the Claimant’s circumstances and instructions. Thirdly, if it were assumed that the e-mail of 9 June 2026 was genuine, a request to suspend proceedings is inconsistent with an intention to prosecute the claim. For that reason, the claim should be struck out.

Having considered all the recent e-mail correspondence, it did not cause me to change my reasoning, conclusions or directions. Various responsive steps need to be taken promptly by Ms Davis but, as Mr Woodley correctly observed, the first is to verify the identity of the individual who sent the e-mail of 9 June 2026 and that its contents are accurate and represent the Claimant’s instructions. In particular, Ms Davis needs to take urgent action to ascertain, in light of the statement about the Claimant’s current diagnosis and treatment, whether he has capacity to litigate.

I am not persuaded, at this stage, to extend the period of the stay from four weeks to three months. In the first instance, Ms Davis needs to act urgently to determine the Claimant’s location, condition, capacity and instructions. If either party considers that there is a need to make an application during the stay, they have permission to do so. But should, for example, Ms Davis seek to extend the stay, the court will expect, at the very least, to see that every reasonable effort has been made by her to determine the Claimant’s location, condition, capacity and instructions.

For the reasons set out above:

I should be grateful if counsel could prepare a draft order which reflects my conclusions.