Case Alerts

The Supreme Court’s Judgment in the Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11 (‘DSD’) made it clear that police services have a positive duty to investigate serious offences committed against individual victims by individual perpetrators and that a breach of this duty by an investigating police service could give rise to a claim for damages under Article 3 of the European Convention on Human Rights.

However, the DSD judgment provided some uncertainty as to the degree of criminality that ought to prompt an Article 3 duty to investigate.

The European Court of Human Rights decision in Volodina v Russia (Application no. 41261/17) (‘Volodina’) goes some way to helping police services with determining what type of crime may pass the ‘minimum of severity’ test as Lord Hughes phrased it in the DSD judgment (paragraph 128 of DSD). The decision also provides further authority as what investigative failings may trigger an Article 3 claim and the levels of damages that could be awarded if successful.

Volodina involved a sustained period of domestic abuse against the Claimant by her ex-partner over 2 years in Russia. The Claimant had reported this treatment to the police on several occasions, but a criminal investigation was never opened and key evidence was not secured.

The Court found that physical and psychological domestic abuse including a single blow or verbal threat (paragraph 98) fell into the Article 3 category of inhuman or degrading treatment or punishment and consequently the police service had a positive duty to investigate domestic violence with ‘special diligence’ (paragraph 92). Further, the Court found that in circumstances when the Claimant withdrew some of her complaints, these were still valid and there remained a need to take positive action.  The Court awarded the Claimant damages in the sum of €20,000 for the Article 3 violations by the Russian state.

The failures of the Russian state to adopt suitable domestic abuse legislation played a significant part in the Court’s findings that there had been a breach. However, the reluctance of the police to launch an investigation and secure evidence when faced with credible allegations of serious ill-treatment are an example of the police conduct that could give rise to an Article 3 claim. It therefore appears the case, as it was in DSD, that only ‘egregious and significant’ errors (paragraph 29 of DSD) in an investigation will support a successful claim and not simple mistakes.

The relatively modest level of damages awarded in Volodina, as in DSD, shows these types of awards remain geared towards upholding the standards of the state as opposed to compensating the victim for the loss suffered.

The decision in Volodina ought to remind police services of their duty to victims to take reasonable steps to investigate crimes that would be caught by Article 3 such as domestic abuse and that when dealing with this particular category of crime, the level of inhuman or degrading treatment is a low one. Further, the importance of ensuring competent and prompt investigative actions are taken when dealing with Article 3 categories of crime cannot be stressed enough given serious errors can leave a police force liable to the victim for damages. In a time when 22,000 new police recruits have been promised, experienced, capable investigators will remain a key resource for police services.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Fred Adams, Solicitor

T: 0161 245 7970   |   M: 07786 333 655   |   E: fred.adams@plexuslaw.co.uk

City Tower  |  Piccadilly Plaza   |  Manchester  |   M1 4BT

To read/download this Case Alert as a PDF please click here.

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

 

 

 

 

 

After his long-awaited review, the Lord Chancellor, the Rt Hon David Gauke MP, has announced the new personal injury Discount Rate at -0.25 per cent.

The new rate will come into effect on August 5 and a statement from the Lord Chancellor will follow.

This is a very minimal increase (on the previous Discount Rate of -0.75% set in March 2017) that is highly surprising and will be of significant concern to insurers and public bodies like the NHS.

Plexus Law provided evidence to the MOJ in advance of the review and throughout the same supported the position of FOIL, that a fairer and more just Discount Rate was required to ensure accurate compensation that did not over or under compensate Claimants.

In determining the rate, the Lord Chancellor is required to assume that a Claimant will invest in a diverse portfolio that involves (i) more risk than a very low level of risk but (ii) less risk than would ordinarily be accepted by a prudent and properly advised individual investor.

The Lord Chancellor did not consider it appropriate to set a dual rate, but this is something that will be considered at future reviews and he will be conducting a consultation into such a rate. On this point he has said: “The potential of the dual rate to be appropriate for future reviews is one that I will consider in more detail through a consultation, which the Ministry will launch in due course.”

It is disappointing the Lord Chancellor did not set a positive rate because no prudent investor would invest in something which produces a negative rate of return.

Section 1 (3) of the Civil Liability Act 2018 (Part 2) states that each subsequent review of the rate of return must be started within the five year period following the last review. Therefore, subject to any immediate challenge from either side of the industry or a significant shift in the financial landscape, such as the 2008 financial crash, the new rate could and should be set up until July 2024.

The new Discount Rate does not affect Scottish claims. Scotland is subject to its own review which commenced on 1st July 2019 and is expected to conclude in September 2019 where it is widely anticipated that the new rate for Scotland will also be set at -0.25%.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Anthony Baker, Partner  & Vice President of FOIL

T: 0113 4681 702   |   M: 07811 545 321   |   E: anthony.baker@plexuslaw.co.uk

Joseph’s Well  |  Hanover Walk   |  Leeds  |   LS3 1AB

Lorien Helm, Partner  

T: 0161 2457 930   |   M: 07584 147 890   |   E: lorien.helm@plexuslaw.co.uk

City Tower  |  Piccadilly Plaza   |  Manchester  |   M1 4BT

Whilst we take care to ensure that the material in this Legal Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Legal Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Legal Alert.

Plexus reflect on the recent case of Dowling v Higgins (Stoke-on-Trent County Court 20th March 2019) and explore the implications for the motor volume claims market along with practical action steps that can be taken.

To view/download as a PDF please click here.

Case Overview

The Defendant was successful in an application to strike out the Claimant’s claim as an abuse of process.

The proceedings concerned a claim for personal injury arising from a road traffic accident that occurred on 11 July 2013.

The Claimant submitted a Claim Notification Form (CNF) on 14 March 2014, under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, with an upper limit of £10,000.

The Claimant’s medical evidence was not complete before the expiry of primary limitation and in July 2016 the Claimant issued a Part 8 claim. At the time the Claimant’s solicitor had already obtained a report from a Consultant Orthopaedic Surgeon which lead them to value the claim in a sum in excess of £10,000. The Claimant’s solicitors had mistakenly proceeded on the assumption that the Protocol upper limit was £25,000. This was a mistake as the Protocol upper limit of £25,000 was only in respect of accidents that occurred after 31 July 2013, the Claimant’s accident occurred on 11 July 2013!

On 3 August 2016 a District Judge made an order on paper that a general stay of proceedings be granted. The Claimant would have to apply to exit the stay on complying with the RTA protocol.

In November 2016 the Claimant’s solicitors disclosed reports from a Clinical Psychologist and Consultant Orthopaedic Surgeon. On 12 December 2016 they also served a schedule of special damages in excess of £17,000.

In June 2017 the Claimant submitted a Stage 2 Settlement Pack offering to settle the matter for £25,000.  The Defendant’s insurers made a counter offer that was not accepted and on the 6 November 2017 the Claimant withdrew the offer of £25,000 in open correspondence.

In open correspondence the Claimant’s solicitors then indicated their intentions to seek further medical evidence from a pain management specialist.

After 6 months of no correspondence from the Claimant’s solicitors the Defendant’s solicitors applied to strike out the claim. Shortly before the hearing of the Defendant’s application the Claimant applied to lift the stay and transfer the claim to Part 7.

Decision of District Judge Isles

The applications came before DJ Isles at Stoke on Trent County Court on 20 March 2019. DJ Isles concluded the following:

• The applicable Protocol upper limit was £10,000.
• In July 2016 when the Claimant issued Part 8 proceedings, they were already in possession of medical evidence and valued the claim in excess of £10,000.
• The claim was wrongly issued as a Part 8 claim as the Protocol no longer applied as the claim was valued at more than £10,000.
• On 6 November 2017 it was clear that when the Claimant withdrew their Stage 2 offer the claim no longer proceeded under the Protocol, even if they were going by the wrong upper limit of £25,000. Therefore, the Claimant’s solicitors should have applied for directions.
• On 12 December 2016 when the Claimant valued special damages in excess of £17,000, it would have been reasonable then to have know the matter would exceed £25,000. Significantly this was before the Claimant submitted their Stage 2 pack so even on the misapprehension that the £25,000 upper protocol limit applied, it was clear the matter was not suitable for the portal.
• The Defendant’s enquiry as to whether the Claimant was going to transfer matters to Part 7 was met with “radio silence”.

From the above DJ Isles was satisfied that the Claimant had been in breach of the Protocol, and that the breaches did cross the high threshold to amount to an abuse of process. The Claimant’s application was refused, and DJ Isles granted the Defendant’s application with an order for costs in favour of the Defendant and on the express basis that the effect of her order was to disapply Qualified One Way Costs Shifting.

Relevant Case Law

Lyle v Allianz Insurance PLC 21 December 2017 – this case bears a striking resemblance to the above matter.

In Lyle His Honour Judge Pearce found amongst other things that the stay was obtained under a false pretext. The delay as in the above case had not only not allowed the Defendant to be involved, but also had caused the court not to be involved.

If the court were to lift the stay, then the Defendant would be left with a state of affairs that an award of costs could not justly alleviate.

Commentary

The Claimant employed a tactic that circumnavigated the Defendant and the court to build a claim for damages unopposed and without any case management, under the guise of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

The Claimant’s solicitors clearly knew or ought to have known that the case had increased in value and thus exited the protocol. In not applying to lift the stay whilst gathering further evidence which clearly increased the value of the claim the decisions in Dowling and Lyle demonstrate that the courts do not take kindly to such tactics.

Notwithstanding the potential value of a claim to a genuinely injured Claimant, when a Claimant’s solicitors conduct does amount to an abuse of process then the court will strike out a claim.

Practical Actions

Following the above it is recommended that when considering your book of volume motor claims the following actions are commenced:

1. Review all Portal claims that are currently stayed
2. Select the cases that have been stayed the longest say over 1 year
3. Review those cases in a case clinic to establish whether any would be suitable to make a strike out application

f you would like to know more about this matter, please speak to your contacts at Plexus:

Sally Richmond, Partner

T: 0113 2229 090    |   M: 07557 391 646  |   E: sally.richmond@plexuslaw.co.uk

Jo Pizzala, Partner

T: 0207 618 0780    |   M: 07957 726 576  |   E: joanne.pizzala@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Aler

Background

The Claimant tripped on an exposed tree root on a public path that ran through a local park owned by Wigan Council (the “Path”). The park was constructed in the 1930’s by the Council’s predecessor, Abram Urban District Council.

It was accepted that the Path had become a highway through at least 20 years’ usage pursuant to s.31(1) Highways Act 1980 (the “Act”) but the Council argued it was not maintainable at the public expense (“MPE”) as there had been no express dedication at the time the Path was constructed and there was no evidence the Council’s predecessor had intended it to be a highway.

HHJ Platts dismissed the Claimant’s case at first instance and found the highway was not MPE in accordance with s.36(2)(a) of the Act.

Appeal

It was found by the Judge at first instance, and was common ground on appeal, that the Path was in a dangerous or defective condition, but the key question was whether the Path was also one that was MPE.

On 19th June 2019 the Claimant successfully appealed that decision on the basis that (as the Council had already accepted the Path was a highway) intention was not necessary as the Path had been constructed by a highway authority and this satisfied s.36(2)(a).

At para. 16 of the Judgement, Waksman J, made clear that once it is recognised that the relevant highway may have become dedicated through usage after its initial construction, there is nothing in the wording of s.36(2)(a) to limit the way in which it later became a highway.

On this basis, therefore, provided the relevant local authority at the time was, among other things, a highway authority, then that is sufficient for its construction of the way to attract the operation of s.36(2)(a) [see para.33]. Waksman J found that there was no reason in statutory language, principle or case law why the Path could not be MPE simply because it only became a highway after long usage and had not been constructed as such at the outset

Wider Implications

The duty to maintain a highway under s.41 of the Act is owed only in respect of those highways MPE.

In the light of this decision, the two key questions that parties must satisfy themselves in relation to any potential liability is:

• Did the accident occur on a highway at the time of the accident? and
• Was the highway constructed by a highway authority?

If the answers to the above are both affirmative, the highway will be classed as MPE irrespective of when it was constructed and irrespective of the intention at the time it was constructed.

The risk for highway authorities is that there might be highways that were constructed by them (or their predecessor) which they might not have realised are highways and consequently MPE.

The Claim was never put on the basis that the Council was liable under the Occupiers’ Liability Act 1957 (“OLA”) as the Council admitted the Path was a highway. Presumably, this was to argue no duty was owed by the occupier in respect of non-feasance as the occupier only owes a duty of care to visitors (see McGeown v Northern Ireland Housing Directive). However, it is clear that this approach has backfired somewhat.

Conclusion

Are paths through parks actually highways? As the McGeown decision now appears somewhat eroded by this decision (McGeown will still apply to public rights of way that are not MPE – think PROWS in the country that are not on the official plan and therefore not MPE – see Countryside and Rights of Way Act 2000), local authorities should carefully investigate all paths to ascertain whether they are a highway or not, and if the former, whether they could be deemed a highway MPE.

In order to potentially limit the impact of this decision, local authorities need to carefully ascertain whether such paths are, actually, highways. It may have been preferable for the Council to admit to owing a duty under the OLA and then argue a reactive system was sufficient to keep the Claimant reasonably safe in the circumstances.

At first glance, the headlines of this decision appear to create a potentially large burden on local authorities to maintain additional paths it previously had not considered highways MPE. On careful consideration, however, it has highlighted the importance of the need for an accurate list of highways MPE under s.36(6) of the Act and to carefully revisit any areas that fall outside of this list which may now qualify as a highway and were built by a highway authority. In particular, if a local authority has a highway authority function, then it is to be classed as constructing any highway under that function, irrespective of the project itself (e.g. a path through a public park).

It also highlights the importance of the need to maintain an accurate record as to who actually built the highway. The duty under s.36(2)(a) is only applicable if the highway authority constructed the highway. If this was constructed by someone else, there can be no s.41 duty. However, if the highway was constructed by another department within the local authority, but the authority was also the highway authority at the material time, then it will be MPE on the basis the local authority is to be seen as one legal entity.

Finally, this may also be a warning for highway authorities to not be so quick to admit that a highway exists in areas where it may remain arguable that they are not – such as in a park.

If you would like to know more about this matter, please speak to your contact at Plexus:

Tom Silson, Partner

T: 0161 245 7973    |   E: tom.silson@plexuslaw.co.uk

To download this Case Alert as a PDF please click here.

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

Plexus successfully resisted an application for a substantial interim payment. The Court accepted the Defendant can still raise mitigation arguments where the Claimant has rejected statutory funding. Paul Phillips who acted for the Defendant looks at the implications of the case.

To download this Case Alert as a PDF please click here.

Plexus represented the MIB (Second Defendant) on an application by the Claimant for a further interim payment. The Claimant, a man in his forties, suffered multiple injuries including a brain injury as a result of a road traffic accident in January 2014 when crossing the road at a pedestrian crossing. He was cared for by the NHS initially in intensive care in hospital before being transferred to a rehabilitation facility and most latterly to a residential care home. During this time, he made what most experts treating him described as a “remarkable” recovery such that he regained the ability to walk, albeit slowly with aids and for short periods, to effectively communicate and a considerable degree of independence. His recovery was such that his appointed case manager and those responsible for his welfare at the care home, when NHS funding finally came to an end in September 2016 opined that, once he had settled into independent living, the 24 hours care regime, particularly in terms of overnight care could gradually be withdrawn (although he would still need some care). The Claimant was offered local authority funded two bedroomed accommodation and direct payments to provide the few hours of support work required, all of which was turned down in favour of privately funded accommodation with 24 hours support provided initially by an agency, but more latterly by a team of privately recruited support workers.

The Claimant immediately sought interim funding and whilst the Second Defendant provided funds on a general basis, it did so having stated on unequivocal terms that it considered the care regime unreasonable and unsupported by those who had initially treated him; and that it would be challenged at final assessment. It was also pointed out to the Claimant that contributory negligence was still a major issue and that the Claimant was likely to find himself funding part of the care package in any event.

With the benefit of interim funding, the care and support regime nonetheless continued to run at a rate fluctuating between circa £35,000 to £33,300 per month.

In late 2018, the court approved a liability settlement in the proportion 85:15 in the Claimant’s favour. Although the Claimant had by this stage already received £675,000 in interim payments, he indicated that he needed a further substantial payment to fund the rehabilitation regime going forward. He promptly made an application for a further interim payment of £500,000.

Shortly before the hearing of the application the Second Defendant agreed to make a further interim payment of £225,000. The balance of the application was adjourned to a future hearing following the exchange of the parties’ medical and non-medical expert evidence.

Reports served by the Claimant broadly supported the ongoing rehabilitation regime. The experts instructed by the Second Defendant however considered the regime to be excessive “resulting in an extended period of unnecessary dependency…(and that the Claimant had) missed out on the positive benefits of greater levels of independence and self-determination.” It was suggested that “…(the Claimant’s) present team seem more concerned with potential risks, and less concerned with positive risk taking in order to improve his quality of life…”

The adjourned application was relisted for 25 March 2019. The Second Defendant indicated that no further funding was on offer and expressed the view that the Claimant had exhausted his entitlement to interim payments; and that had a more reasonable care regime been put in place, the interim payments paid already would have been sufficient to last through to trial.

Judgment

In his judgment, the Master drew reference to CPR 25.7(4), which contains two important limits:

1. The court must have regard to what is “likely” to be the final judgment; and
2. An interim payment may not be more than a “reasonable proportion” of that likely final judgment.

Whilst “reasonable proportion” is not further elaborated in the rules, the Master cited the judgment of Smith LJ in Cobham Hire v Eeles [2009] EWCA Civ 204 where the judge said that it “..may well be a high proportion provided the assessment has been a conservative one. The objective is not to keep the Claimant out of his money, but to avoid the risk of overpayment.”

The Master then went on to consider how the “likely” final judgment is to be assessed with reference to the two stages principle as set out in Eeles; and that under “Eeles I”, this would include special damages to date, general damages and accommodation costs, but leaving out of account the heads of future loss which the trial judge might wish to deal with by way of a Periodical Payments Order (“PPO”).

Under “Eeles II” however, the Master noted there are circumstances in which the court will be entitled to include in the assessment additional elements of future loss when it can confidently predict that the trial judge will wish to award a larger capital sum than that covered under “Eeles 1”; but that as a rule, the court should stop at a figure, which it is satisfied is likely to be awarded as a capital sum. The degree of confidence required to predict that the trial judge will capitalise additional elements of future loss so as to produce a greater sum must be high.

Citing the judgment of LJ Smith in Eeles, the Master noted that “Before taking such a course, the judge must be satisfied by evidence that there is a real need for the interim payment requested.”

Against this background the Master invited the parties’ counsel to each prepare a tabulated summary of their respective valuations of the “likely” final judgment under “Eeles 1”. Claimant’s counsel submitted that even on a conservative basis, the Claimant was likely to recover a lump sum substantially higher than the level of interim payments already made. However, counsel for the Second Defendant maintained that a further interim payment would result in an overpayment or something so close to its maximum valuation as to be negligible and hence in excess of a reasonable proportion, based on the Second Defendant’s “conservative” basis assessment.

The Second Defendant also maintained that the Claimant had failed to mitigate his loss by not accepting the accommodation and statutory funding offered by the Local Authority; and had he accepted it, the benefit could have been over £68,000 by the date of trial.

In terms of the deduction to reflect the inappropriate care regime, the Second Defendant relied on Loughlin v Singh [2013] EWHC 1641 where the court reduced a Claimant’s past care regime by 20% and in the case at hand submitted that the appropriate reduction here would be at least 25% to reflect the value of night care unnecessarily provided.

The Master gave some consideration to whether the conservative approach should apply to the Claimant’s or the Defendant’s valuation, but stated that this would depend on the facts and issues of a particular case and that the court should have regard to whether there is a sustainable argument that not all aspects of loss should be recoverable. The question is whether the award at trial may well be sufficiently closer to the Defendant’s figures as to result in either overpayment or something uncomfortably beyond a “reasonable proportion”.

The Master also considered the Second Defendant’s mitigation argument both important and arguable. Whilst acknowledging that the Peters principle was well established that a tortfeasor cannot displace a loss if the victim chose not to apply for publicly funded assistance, he drew a distinction between a case where the Claimant had simply not applied for assistance with one where he had rejected a specific offer in circumstances where it would be unreasonable to do so; particularly in a case such as this where 15% of his damages were irrecoverable from the Defendant. Mention was made of the judgment of Lord Dyson in Peters where he stated: “There is much to be said for the view that it is reasonable for a claimant to prefer self-funding….rather than provision at the public expense… In other words, it is not open to a defendant to say that a claimant who does not wish to rely on the State cannot recover damages because he or she has acted unreasonably….We heard no argument on this approach to the mitigation issue and we express no concluded view about it”.

Consequently, the Master considered the mitigation point to be entirely arguable and one that he could take account of when assessing what realistic minimum value the claim has.

Following his review of the evidence the Master was satisfied that the Second Defendant’s medical evidence presented a very different and equally plausible contrary case to that of the Claimant’s evidence and that he could not disregard that and yield to an implied threat, even if wholly unintended, that the denial of further funding could result in dire consequences for the Claimant, and that he would run out of funds to support his care needs through to trial. The Master thus found that the Second Defendant had an arguable and fundamental point that the current care regime was open to question and that there was a real risk that the Claimant’s past losses for care an accommodation stand to be reduced by significant margins.

In the light of the above, the Master was thus not satisfied as to need for the purposes of the application.

The Master then went onto consider the consequences of overpayment by way of interim payment at this stage and that it would presumably have to be reflected as a credit against the Claimant’s future loss award and could potentially impact on the adequacy of it in terms of the funds available to support the Claimant in the future.

In conclusion, the Master was not persuaded that it would be appropriate to make a further interim payment pending trial and refused the Claimant’s application.

Comment

This case provides not only a useful recap of the principles set out in Eeles, but also emphasises that even in circumstances where a care regime is firmly established the court will not necessarily be satisfied as to the reasonableness of it; and that the award in respect of it may stand to be significantly reduced on final reckoning.

Furthermore, the decision potentially reopens the state funding argument in partial recovery cases the court may entertain an argument that the Claimant has failed to mitigate his loss in refusing state funding over private funding. It will be interesting to see how that develops and any further decisions on the point are eagerly awaited. Those advising Claimants will have to think carefully if they refuse an offer by the Defendant for a funding expert if they are not going to recover 100 per cent of their damages.

If you would like to know more about this matter, please speak to your contact at Plexus:

Paul Phillips, Partner

T: 020 7469 6258    |   M: 07989 196 490  |   E: paul.phillips@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

On 6 June 2019, Lord Reed handed down Judgment in the Supreme Court in which the claims brought by the siblings CN and GN were unanimously dismissed. In dismissing the claims, the Supreme Court clarified the extent of a Local Authority’s duty of care to avoid harm when exercising child protection functions.

Circumstances

The circumstances of this case are important in understanding the decision of the Supreme Court. The Claimants, CN and GN, are siblings and were aged 9 and 7 respectively at the time of the complaints.  In 2006, the Claimants moved with their mother to a new house in Poole, arranged by Poole County Council as the local housing authority. CN suffered with severe physical and learning difficulties and was a ‘child in need’ as defined by S17 of the Children Act 1989. Prior to the housing placement, the Local Authority is said to have been aware of a neighbouring family who engaged in persistent anti-social behaviour. Over the next 5 years, the Claimants and their mother were subjected to anti-social behaviour in the forms of violence and damage to their property, carried out by this neighbouring family. Complaints were raised by the Claimants’ mother to the Police, Local Authority and Landlord (Poole Housing Partnership). The anti-social behaviour escalated to the point that CN attempted suicide and in 2010 the Home Office commissioned a Review, the outcome of which was critical of all three organisations to whom the Claimants’ mother had complained.

Initial Court Proceedings

A civil claim against all three potential Defendants was advanced by the mother and both siblings alleging breaches of the Human Rights Act 1998 and a failing in negligence to safeguard the family from anti-social behaviour. The claim was dismissed after a failure to serve Particulars of Claim. Four months later, the Claimants served further proceedings alleging negligence against the Local Authority only. An additional claim was also served on behalf of the siblings alone, alleging the Local Authority owed them a direct duty at common law to safeguard and promote their welfare. Master Eastman was not satisfied that a common law duty to safeguard children existed under the Act and accordingly struck out the claim. This decision was appealed by the siblings only, who argued that the Master had failed to have regard for the decision in JD v East Berkshire. The Claimants’ Appeal was permitted by Slade J and the claims were restored.

The Defendant sought, and was granted, permission to appeal to the Court of Appeal. The appeal submitted there was no legal standing requiring that they owed a duty of care to protect the Claimants from harm perpetrated by a third party. The Defendants’ asserted that the Children Act 1989 did not create a duty of care in this situation and neither did the Act afford the Defendant powers to simply remove a child from its parents: an emergency Protection or Care Order would be necessary in such a situation. The two main arguments advanced by the Defendants were:

1. Slade J had been wrong to accept she was bound by D v East Berkshire so as to conclude it was arguable that the Local Authority owed a common law duty of care to Claimants in the exercise of its functions under the Children Act; and
2. Slade J was wrong in failing to consider or accept the Defendants’ contention that this case related to the Local Authority’s duties under the Housing Act rather than the Children Act.

The Defendant’s Appeal was unanimously allowed. In doing so, the Court accepted that the Claimants’ claim related to a failure by the Local Authority to rehouse them and considered it implausible to suggest the Claimants should have been removed from their mother’s care simply as a means of ending the anti-social behaviour. In reaching this decision, Irwin J found that the authority of D V East Berkshire should no longer be followed, and that there was no good reason to conclude the Local Authority had assumed responsibility for the Claimants in the circumstances of this case.

Supreme Court Decision

In dismissing the Claimants’ appeal, the Supreme Court held that the Children Act 1989 does not create a statutory cause of action and a public authority cannot assume responsibility merely by operating a statutory scheme. The Court did not accept that the Local Authority had assumed a responsibility for the Claimants through the process of investigating and monitoring their situation.  As the Claimants had not been taken into care, no responsibility for their welfare had been assumed.

Lord Reed clarified that the decision in D v East Berkshire had not been over-ruled by any subsequent decision. In considering whether a Local Authority owes a duty of care towards a child, the principles in Robinson should be followed and a distinction made between those cases where the defendant is alleged to have harmed a Claimant and those cases where the Defendant is said to have failed to provide a benefit to the Claimant e.g. to protect them from harm. This case falls into the latter category.

The Supreme Court also dismissed the Claimants’ assertion that in the alternative, the Local Authority were vicariously liable for the harm caused through the negligence of their Social Workers. In reaching this decision, the Court held the Claimants had failed to establish that the social workers had assumed responsibility for the Claimants.

In concurring with the Court of Appeal, the Supreme Court agreed there was no merit in the Claimants’ suggestion that the Local Authority should have obtained a Care Order to protect them from the anti-social behaviour. Such an Order would require the Local Authority to establish the Claimants were suffering, or were likely to suffer, significant harm caused by a lack of parental care.

Commentary

This decision clarifies that a local authority does not owe a duty of care at common law simply because it has statutory powers or duties, even if by exercising those powers or duties they could prevent harm being suffered. However, a local authority and its social workers may owe a duty of care to protect from harm in the same circumstances that private individuals or organisations may owe such a duty of care i.e. where they have created the source of the danger or assumed responsibility to protect a Claimant.

Naturally, Local Authorities and other organisations will question how this Judgment is likely to impact more traditional negligence claims, such as failure to remove cases. As is always the position, each case will turn on its own facts, but what is now evident following the Supreme Court’s Judgment, is that a Claimant will need to establish there was an assumption of responsibility for them, to be able to succeed in the assertion that a duty of care was owed.

Related Links

Press statement from Supreme Court: https://www.supremecourt.uk/cases/uksc-2018-0012.html

To download as a PDF please click here.

If you would like to know more about this matter, please speak to your contact at Plexus:

Kate Prestidge, Partner

T: 01245 951 726    |   M: 07790 341 706  |   E: kate.prestidge@plexuslaw.co.uk

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