Bluett v Suffolk CC
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE POOLE |
| Judgment Date | 20 February 2004 |
| Neutral Citation | [2004] EWHC 378 (QB) |
| Court | Queen's Bench Division |
| Docket Number | QB/2003/PTA/0729/0731 |
| Date | 20 February 2004 |
[2004] EWHC 378 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2
Mr Justice Poole
QB/2003/PTA/0729/0731
MR JOHN CHERRY QC & MR IAN MARTIGNETTI (instructed by Messrs John A White & Co) appeared on behalf of the CLAIMANTS
MR JAMES DINGEMANS QC (instructed by Badhams) appeared on behalf of the 1ST DEFENDANT
MR JOHN STEVENSON (instructed by Messrs Eversheds) appeared on behalf of the 2nd, 3rd & 4th DEFENDANTS
MR STEPHEN HOCKMAN QC (instructed by Stanley Tee) appeared on behalf of the 5th & 6th DEFENDANTS
This is the claimant's appeal against orders of Master Leslie on 29th September 2003 granting the applications of the first defendant, and the second, third and fourth defendants for summary judgment and strike-out of her claim. It is also an appeal by the fifth and sixth defendants against the refusal of Master Leslie of their application for summary judgment and strike-out of the claimant's claim.
The factual background, in brief, is as follows. On 3rd January 1998 the claimant, Jenny Blewett, was aged 16 years and seven months. She had, days earlier, taken up residence at The Foyer in Ipswich, premises in the ownership or under the control of the second, third and fourth defendants (between whom, for the purposes of these proceedings, I need draw no distinction). For several years she had had the benefit of contact with the first defendants; and while she was never in care, it is admitted by the first defendants, the Suffolk County Council, that for the purposes of section 24(2) of the Children Act 1989, she was a person qualifying for advice and assistance from her local authority, who had undertaken to advise and befriend her pursuant to section 24(4) of that Act. To put it neutrally, the first defendants, through the offices of a senior social worker, Mr Peter Lorford-Page, had for a considerable time been involved in decisions concerning the claimant's accommodation and welfare, and had had some involvement in her placement at The Foyer. The fifth and sixth defendants (between whom again for the purposes of these proceedings I need draw no distinction) were a security firm employed by the second, third and fourth defendants to provide security services on the ground floor only, as they submit, for residents at The Foyer.
At about 1 o'clock in the morning, or possibly later, on 3rd January 1998 the claimant was in her room on the third floor of The Foyer when the seventh, eighth and ninth defendants, following a series of violent arguments and (possibly) assaults between the parties earlier in the night, assaulted her by issuing threats and forcibly breaking down her door to enter her room, thereby by putting her in fear of life and limb. As a direct result of this, she leapt from the window of the room on to a concrete surface approximately 40 feet below, suffering serious multiple injuries. She is now permanently disabled, and her claim is obviously a valuable one.
In particulars of claim drafted by counsel, the claimant attributes her injuries to the breach of statutory duty and/or negligence of the first defendants, of the second, third and fourth defendants, and of the fifth and six defendants, their servants or agents. As I have already mentioned, defendants seven to nine are also joined to the action. They are the three persons responsible for the assault on the claimant; and they were prosecuted to conviction the following year at the Ipswich Crown Court. They have not appeared before me in the course of these proceedings, though I have seen the written defences that have been entered on their behalf. None of the three were resident at The Foyer; all three were visitors.
The pleaded allegations of statutory duty and negligence include these. First, against the first defendant: that they failed to advise and befriend the claimant, contrary to the requirements of their duty under section 24 of the Children Act 1989, that they failed to warn her or advise her of the dangers of residing at the premises or not to reside there, failed to take measures to ensure her safety there, and failed to ensure that the premises were suitable and safe for their purpose.
Against the second, third and fourth defendants, in summary, it is pleaded that they failed to take all reasonable steps and measures to ensure the claimant's safety, contrary to section 2 of the Occupiers Liability Act 1957, or to engage proper or adequate security agents, or to ensure a zero-tolerance policy about drug consumption, or to eject unwelcome and uninvited non-residents, or to prevent the assault, or to interrupt and prevent the breaking-down of the door, and that they caused or permitted the seventh, eighth and ninth defendants to be on the premises in the middle of the night when they knew or ought to have known that security was inadequate.
Against the fifth and sixth defendants it is pleaded that they failed to provide adequate security staff, permitted non-residents into the home, presenting risk of harm to residents, were negligent in operating their admission criteria to the premises, allowing large groups of youths into the premises in circumstances that were dangerous, that they failed to operate a zero-tolerance drugs policy, that they failed to ensure that their employee on the spot, Mr James Bolsover, was sober, or properly to instruct him, that they failed, through him, to ensure that the claimant was safe, and that they caused or permitted or forced the claimant to make evasive action by jumping through the window.
Defences for the first defendants, second, third and fourth defendants and for the fifth and sixth defendants, drafted by counsel, contain denials of the existence of any duty, statutory or at common law, or of any breach of duty and of causation.
I have had the benefit of written and oral submissions from counsel for the claimant, for the first defendants, for the second, third and fourth defendants, and for the fifth and sixth defendants.
Mr Cherry QC, for the claimant, advanced these submissions. It was, he said, only in the very clearest and unequivocal cases where there is no prospect of success that defendants should succeed in applications such as this. First of all, the first defendant's application to strike out had been brought under CPR rule 3.4(2)(a):
"The statement of case discloses no reasonable grounds for bringing the claim."
That was a rule, he said, that covers cases which are obviously ill-founded and other cases which do not amount to a legally recognisable claim, or those which raise an unwinnable case. But, he submitted, it is not appropriate to strike out a case if it raises a serious issue of fact which can only be determined by hearing oral evidence. He took me to Bridgeman v McAlpine Brown [2000] LTL January 19, 2000, Court of Appeal, in support of that proposition.
Rule 24.2, he continued, empowers the court to give summary judgment where it considers that the claimant has "no real prospect of succeeding on the claim".
The proper disposal of an issue under Part 24 does not, however, involve the judge in conducting a mini trial. He adverted to the well-known passage in Swain v Hillman [2001] 1 All ER 91. Nor is it meant to dispense with the need for a trial where there are issues which should be investigated at the trial. Furthermore, the disposal of a claim by summary judgment can raise issues, he said, in relation to Article 6 of the European Convention on Human Rights and the right of access to a court. Equally, going to a dictum of Neuberger J (as he then was) in Chan U Seek v Alvis Vehicles Ltd, May 8, 2003:
"… if the court considers that the claim, though very weak, stands a chance of success it is not consonant with basic principles of English justice or indeed, as I see it, with Human Rights Law for a party seeking to pursue such a claim, to be barred from proceeding with it. However much one may seek to apply the rules of proportionality, it is not and cannot be the court's function to stifle a claim merely because it looks very weak and unlikely to succeed."
Mr Cherry then submitted that the Master was plainly wrong to strike out the claims made against the first defendants and the second, third and fourth defendants on the basis that the claimant had no prospects of success, and that he had wrongly dispensed with the need for a trial in the cases of those defendants where there were clear issues that demanded investigation. Furthermore, he submitted that he was wrong in law in failing, on applications by the first to the fourth defendants for summary judgment, to make assumptions in favour of the claimant in relation to every contentious matter.
So far as the case against the first defendant was concerned, he said that at the hearing on 29th September 2003 it was accepted by the first defendants through their counsel, as indeed it was here, that at the time of what Mr Cherry called the 'precipitating event' (a reference to the claimant's fall) they continued to act in relation to the claimant under obligations placed upon them by section 24 of the Children Act.
At the time of the break-down of her placement with the Walsh family in September 1997, the local authority considered that they had a continuing duty to accommodate Jenny as a "child in need" pursuant to sections 17 and 20 of the Children Act 1989. He said that the local authority acknowledged that at the time and took steps to arrange further accommodation. In doing that, he said, they had a duty to the claimant to ensure that she was placed in an "appropriate and safe...
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