GB (a protected party by her litigation friend the Official Solicitor) v Home Office
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 31 March 2015 |
| Neutral Citation | [2015] EWHC 819 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X03243 |
| Date | 31 March 2015 |
The Honourable Mr. Justice Coulson
Case No: HQ13X03243
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice,
Rolls Building,
Fetter Lane, London, EC4A 1NL.
Mr Angus McCullough QC and Ms Michelle Knorr (instructed by Wilson Solicitors LLP) for the Claimant
Ms Julie Anderson (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 17 March 2015
Introduction
In these proceedings, the claimant, GB, pursues a claim in negligence against the defendant arising out of medical treatment which she received whilst detained by the defendant at Yarl's Wood Immigration Removal Centre between 16 June and 27 July 2012. It is said that the prescription of an anti-malarial drug caused her to suffer a severe psychotic reaction. In the autumn of the last year, Master Leslie ordered the trial of a preliminary issue as to whether or not the defendant owed to GB a non-delegable duty of care. If it did not, the claim in negligence must fail, although there is a separate claim against the defendant for unlawful detention which is unaffected by this issue. If there was such a duty, then there are a variety of other disputes arising out of the allegations of negligence and causation which are also unaffected by this preliminary issue.
Anonymity
At the outset of the trial, Mr McCullough QC applied for an anonymity order. This was put on the basis that such an order was necessary to protect GB from those who may seek to target and exploit her as a result of knowing that she has brought these proceedings, which could result in substantial compensation. It was said that, because she lived in the community, the prospects of such targeting was not fanciful.
My initial view was that an anonymity order was not appropriate in this case. However, Mr McCullough QC drew my attention to the recent Court of Appeal decision in JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ. 96. In that case the Court of Appeal made an anonymity order in respect of an approval hearing concerning a child's claim for damages following severe birth injuries. The Court of Appeal not only concluded that an anonymity order was appropriate in that case, but they also set out wide-ranging guidelines in respect of all cases where children or other vulnerable persons would face an invasion of privacy if their identity became public. At paragraph 33 of his judgment, Moore-Bick LJ said:
"An important aspect of justice is consistency. The question for decision in each case is whether a derogation from the principle of open justice is necessary in order to ensure that justice itself is done. At one level that must depend on the facts of the individual case, but it is important to ensure a reasonable measure of consistency in order [to] prevent the administration of justice being brought into disrepute. This is an area in which fine distinctions are difficult to justify and not easily understood… It appears that applications for anonymity orders are becoming more frequent and, according to the very experienced judge who dealt with the matter below, there is uncertainty among judges about the course that should be taken. In those circumstances we think it appropriate for us to provide some guidance for judges at first instance."
He went on to identify one of the principles to be applied: that, unless the judge was satisfied after hearing argument that it was not necessary to do so, an anonymity order should be made.
I respectfully agree with Moore-Bick LJ's observations about the need for consistency. I also note what is an effective reversal of the ordinary burden of proof in cases involving children and (as in this case) vulnerable people: that an anonymity order should be made unless it can be shown to be unnecessary. It has not been shown to be unnecessary in the present case. In those circumstances, despite my initial doubts, I concluded at the hearing that, in accordance with the guidance from the Court of Appeal, an anonymity order should be made.
The Preliminary Issue
By an order dated 22 October 2014, the relevant parts of which were by consent, Master Leslie ordered that there should be a preliminary issue as follows:
"(i) Whether or not the defendant owed a non-delegable duty of care to the claimant so as to render it liable to the claimant in respect of any negligence acts or omissions on the part of those providing medical care at Yarl's Wood IRC, in particular Dr Inskip (were such negligence to be established);
(ii) Further alternatively, whether or not the defendant was vicariously liable for the acts or omissions of the medical practitioner and other Yarl's Wood health care staff."
Although the scope of the duty alleged is not identified in the order, it was submitted by Mr McCullough QC at the hearing that it was "the duty to take reasonable care in the medical advice and treatment provided to those in the control of the Home Office through being in immigration detention". He said emphatically that, contrary to what Ms Anderson had suggested, he was not alleging some sort of higher duty to provide "infallible medical care" or "perfect care in every situation". The preliminary issue was, therefore, whether there was a non-delegable duty owed by the defendant to GB to take reasonable care in the medical advice and treatment provided to her whilst she was a detainee.
Throughout the hearing before me, both parties made copious references to the judgment of Lord Sumption in Woodland v Swimming Teachers Association and Others [2013] UKSC 66; [2014] AC 537. That was also a case where a preliminary issue was identified about the existence or otherwise of a non-delegable duty of care. What the parties failed to do was refer me to paragraph 2 of that judgment, in which Lord Sumption expressed doubts about the wisdom of hearing a preliminary issue in that case. He said:
"But it must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation. The pleadings are unsatisfactory. There are no findings of fact and almost everything is disputed. A decision of the point presently before us will not be decisive of the litigation either way, because there are other bases of claim independent of it. The point has taken more than two years to reach this stage, during which, if the allegation had been allowed to go to trial, it would almost certainly have been decided by now. As it is, regardless of the outcome of this appeal it will now have to go back to the High Court to find the relevant facts."
In my judgment, much of what was said by Lord Sumption in Woodland is equally applicable here. Even if I found no duty, the defendant would remain in these proceedings because of the separate claim for wrongful detention. The preliminary issue therefore goes only to whether or not there should be further parties to the proceedings, namely Serco, the company running Yarl's Wood on behalf of the defendant, and/or the doctor who prescribed the anti-malarial drug. In my view, this did not justify the use of a costly preliminary issue procedure in this case. In commercial litigation (funded by individuals or companies) preliminary issues are relatively rare because they are not generally regarded as efficient. It seems only to be in publicly-funded cases, often where there is an echo of the procedures of the Administrative Court, where this way of proceeding remains popular. In my judgment, it is time for a rethink.
However, the difficulty with which I was faced on the morning of the hearing was the difficulty always faced by first instance judges in this situation. They may be sceptical as to the utility of a preliminary issue, but if they refuse to hear it, they are merely adding to the costs of an action which (as here) is being publicly-funded on both sides. They therefore have little option but to listen to the arguments and resolve the issue, no matter how doubtful they may be as to the value of the exercise.
The Agreed Statement of Facts
The problems in this case were compounded by the failure on the part of the defendant to agree a Statement of Facts prior to trial. Master Leslie very sensibly ordered that a Schedule of Facts should be agreed at least 42 days before the trial. There was no such agreement. Indeed, at the start of the hearing, the Schedule of Facts remained in dispute. I indicated that I was not prepared to hear the case on that basis. Ultimately a Schedule of Facts was agreed, based on the proposals from the claimant, with deletions by the defendant. It is attached at Section 11, as Appendix 1.
In summary, the factual position is this. GB is a Nigerian national born on 15 September 1978. After 22 June 2010 she was an illegal over-stayer in the United Kingdom. She became pregnant. In June 2012 she was arrested following a public argument with the man whom she said was the father of her child. She accepted a caution for criminal damage and was detained under the defendant's immigration powers. On 19 June 2012 she was taken to Yarl's Wood IRC, which is run on behalf of the defendant by Serco.
When GB arrived she had a medical screening. Two days later, on 21 June 2012 she was seen by Dr Inskip, a general practitioner employed by a local GP surgery. He conducted an assessment and prescribed GB with Mefloquine, an anti-malarial drug. This was because the defendant was proposing to send GB back to Nigeria (that is why she was in Yarl's Wood in the first place) and there are clear rules relating to the prescription of anti-malarial drugs to those who might be sent back to countries where malaria is commonplace.
On 10 July 2012, GB was...
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