Public Authority Liability: Stifling the Common Law

Published date01 June 2009
Date01 June 2009

Jain v Trent Strategic Health Authority1

[2009] UKHL 4, [2009] 2 WLR 248.

addresses the role of the common law of negligence in protecting the citizen from oppressive behaviour on the part of regulatory bodies. The claimants ran a nursing home for patients who were mentally ill and infirm and the defendants were the regulatory body.2

As successor in title to the Nottingham Health Authority.

The statutory framework was provided by the Registered Homes Act 1984.3

The Act does not apply in Scotland. In England the relevant provisions have been repealed but are re-enacted in the Care Standards Act 2000.

The regulator had certain powers of intervention, including a power to apply to a magistrate in an emergency for an immediate order for the cancellation of the registration of the proprietor of the nursing home without giving the proprietor any notice

Those powers were exercised in the case of the claimants and the home was closed as a result. The claimants had been given no prior notice of the application or of the grounds on which it was made and, therefore, had no opportunity of contesting the matter. The 1984 Act allowed for an appeal to a tribunal. The claimants appealed successfully, but this appeal was not heard until some four months after closure had been imposed and, by this stage, the business was ruined. The tribunal was scathing in its criticism of the regulator in exercising its powers of intervention on the basis of irrelevant and prejudicial information and of insinuations of abuse of residents notwithstanding the absence of supporting evidence. This prompted the trial judge to hold that the decision to make an emergency application without notice was unreasonable in the public law sense: that is, he considered that no reasonable authority could have come to that decision. The House of Lords concluded that the application for closure should never have been made.

The tribunal's finding for the claimants was somewhat hollow as there was no power to award compensation. The claimants turned to the common law. The crux of the matter was whether the regulator, in exercising the powers conferred by statute, owed a duty of care in negligence. The answer given by the House of Lords was in the negative because the primary purpose of the legislation was said to be the protection of those resident in homes; this aim might be undermined were a duty to be owed to those in the business of running homes since the interests of the two constituencies might well...

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