B v Reading BC

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Anthony Clarke MR
Judgment Date11 December 2007
Neutral Citation[2007] EWCA Civ 1313
Docket NumberCase No: A2/2007/0108

[2007] EWCA Civ 1313

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEENS BENCH DIVISION

The Honourable Mr Justice Keith

HQO2X01802

Before

Sir Anthony Clarke Mr

Lord Justice May and

Lady Justice Hallett

Case No: A2/2007/0108

Between
B
Claimant/Respondent
and
(1) Reading Borough Council
(2) Wokingham District Council
First and Second Defendants/Appellants
(3) The Chief Constable of Thames Valley Police
Third Defendant

Mr Andrew Miller (instructed by Messrs Watmores) for the First & Second Defendants/Appellants

Mr Nick Bowen (instructed by Messrs Gabb & Co) for the Claimant/Respondent

Hearing date: 20 November 2007

Sir Anthony Clarke MR

This is the judgment of the court.

Introduction

1

This appeal is part of complex and no doubt extremely expensive litigation which arises out of events which occurred many years ago. This is the second time that an interlocutory appeal has reached this court. On this occasion it is an appeal, brought with the permission of Sedley LJ, against an order made by Keith J ('the judge') on 13 December 2006 refusing to strike out part of B's claim for damages for alleged breaches of an alleged direct duty of care owed by the defendant local authorities to B. The judge had previously struck out earlier parts of B's claim for damages, in so far as they were based on the alleged vicarious liability of the local authorities for alleged breaches of duty said to be owed by a social worker (or social workers) to B. That earlier order was made pursuant to a judgment finally handed down on 12 October 2006.

B's claims

2

There were initially two claimants in this action. The first was L and the second was B, who is L's father. The claimants alleged misfeasance in public office, conspiracy to injure and negligence both against the first and second defendant local authorities and against the police. The second defendant is the successor in title to the first defendant and the first defendant is the successor in title to the relevant local authority at the time, which was Berkshire County Council ('Berkshire'), which no longer exists. In these circumstances it is convenient to describe the first and second defendants and Berkshire together as 'the local authority'. The claims arise out of investigations carried out by local authority social workers and the police into allegations of sexual abuse said to have been inflicted on L by B. The allegations had been made by L's mother S when L was very young.

3

L was born in 1987. Her parents were not married and parted in June 1988, whereafter B saw L from time to time, but in early 1990 S made allegations of sexual abuse against B. As a result L was interviewed twice by a social worker, Ms Sandra Sullivan, and a police officer, WPC Grey. The first interview was at L's home. At [4] to [7] of his judgment of 12 October 2006, which we will call 'the first judgment', the judge described the assumed facts in part as follows, beginning with a reference to the first interview:

“4. The interview was not video-recorded, nor were contemporaneous notes made of it by Ms Sullivan or WPC Grey. But L said things which made them think that B had sexually abused her, even though they were subsequently to accept that what L had told them had not amounted to evidence of sexual abuse.

5. Ms Sullivan and WPC Grey interviewed L again the following day. This time the interview was video-recorded. The claimants' case is that the questioning of L was “outrageous and oppressive”; she was pestered and pressed until she became upset, she was exposed to a number of inappropriate sexual suggestions, but despite all that nothing was elicited which could have been described as evidence of sexual abuse. Specifically, L denied that a game she had played with her father, and which had led Ms Sullivan and WPC Grey to suspect sexual abuse, had been “naughty”, she said that she had played the game with her mother, and she said that B was not the only person she referred to as “Daddy”. That was what she called one of her mother's boyfriends.

6. B was arrested following this interview. In the course of his interview, WPC Grey told him that the police had medical evidence that L had been sexually abused. That was untrue. Despite that, B denied having ever abused L. He was released without charge, but on 25 April 1990 Ms Sullivan attended a child protection case conference about L, at which she claimed that L had said things which could only have meant that fellatio had taken place. The Re-amended Particulars of Claim do not state whether she recommended that L be placed on the child protection register as a child who had suffered sexual abuse, but what is pleaded is that that was the consequence of Ms Sullivan's claim that what L had said B had done amounted to fellatio. That decision was confirmed on subsequent occasions, and B was not allowed to see L. It looks as if it is being alleged that those decisions were based on the recommendations of the various social workers who were responsible for L's case subsequently.

7. In due course, B issued an application for contact with L. That application was eventually consolidated with Berkshire's application for a care or supervision order in respect of L. Those applications were considered by Judge Kenny in Reading County Court in 1993. He urged the social workers to “take a fresh look” at the case. Despite that, and despite the doubts expressed in the psychiatric evidence filed in those proceedings about the propriety of the actions of the social workers and whether B had indeed sexually abused L, it looks as if it is being alleged that the social workers continued to recommend the retention of L's name on the child protection register. Eventually, following a lengthy hearing in 1995, Judge Kenny found that B had not sexually abused L in any way, and he made various orders intended to promote contact between L, B and B's parents. Eventually, a full care order was made in favour of Berkshire so that L could receive such support and counselling as she needed. In October 1996, she went to live with B, and has lived with him and his new family ever since.”

4

Both the judgments of the judge were based on the same assumed facts. In argument in this appeal Mr Bowen naturally stressed the serious nature of the case, including the fact that B was only exonerated after a 26 day trial before Judge Kenny. He relied, for example, on Judge Kenny's view expressed in his judgment that statements made by WPC Grey and Ms Sullivan about the interview were grossly misleading. Judge Kenny said that he was appalled that two professional people engaged in child protection work should have been so unscrupulous in seeking to prove that sexual abuse had occurred rather than to establish the facts. B's case is that, as a result of the way he was treated by the social workers and the police he lost his employment and developed clinical depression and other psychological illness. In addition it is said that he has become an alcoholic as a direct result of the prolonged legal proceedings.

5

These proceedings were issued in 1998, which is of course nearly ten years ago, when L was 11 years of age. B was named as her next friend and would now be named as her litigation friend. However, on 2 June 2006 L's solicitors served a notice of discontinuance, with the result that the only remaining claimant is B.

6

When the matter was before the judge on the first occasion the relevant pleading was, as we understand it, the re-amended particulars of claim. They pleaded in paragraph 39 that in carrying out the interviews the local authority and Ms Sullivan were exercising a statutory function by reason of section 1(1) of the Child Care Act 1980, which underlines the duty of local authorities to promote the welfare of children. They pleaded in paragraph 40 that WPC Grey was exercising the common law powers of a police officer and in such capacity owed a duty to L and the public as a whole to prevent the commission of crime.

7

Paragraph 41 alleged that the various social workers allocated to the case owed duties to L and B to discharge their professional functions with the care which could be reasonably expected of a reasonably competent social worker. Paragraph 42 alleged that the local authority was vicariously liable for any breach of that duty. In paragraph 44 the pleading, not entirely accurately, described the duty alleged in paragraph 41 as the vicarious duty and then, together with paragraph 45, set out the content of the duty as follows:

i) on Ms Sullivan (a) to ensure that she carried out interviews, recorded L's responses and demeanour during the interviews, represented the contents of interviews to others, all with reasonable care; and (b) to provide her line management and the Child Protection conference with such information following the interviews as a reasonably competent social worker in her position would have provided;

ii) on Ms Sullivan and others to support contact if possible and competently to operate whatever system her employer put in place before (a) recommending that L be placed or remain on the Child Protection Register as an actual victim of sexual abuse; or (b) operating any system to ensure that there was a proper assessment of the allegations before informing others that L had been abused by B and/or that B had an opportunity to challenge information or decisions and/or to attend reviews and the like and/or that the Child Protection conference (and its chairman) were aware of all relevant evidential material; and

iii) on Ms Sullivan and others, in the absence of...

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    • 24 June 2009
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