J v A South Wales Local Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Marcus Smith |
| Judgment Date | 14 September 2020 |
| Neutral Citation | [2020] EWHC 2362 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Claim No: 2YL69939 |
| Date | 14 September 2020 |
[2020] EWHC 2362 (Admin)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
APPEALS (ChD)
On appeal from the order of Her Honour Judge Howells dated 4 October 2019, sitting in the County Court at Cardiff
Sitting remotely at:
The Cardiff Civil Justice Centre
2 Park Street
Cardiff CF10 1ET
THE HONOURABLE Mr Justice Marcus Smith
Claim No: 2YL69939
Appeal No: CF095/2019/CA
Mr Justin Levinson (instructed by Hugh James Solicitors) for the Appellant
Mr Steven Ford, QC (instructed by Dolmans Solicitors) for the Respondent
Hearing date: 17 July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A. INTRODUCTION
. This appeal concerns proceedings brought in the County Court at Cardiff by the Claimant, J. 1 In order to preserve J's privacy, both his name and that of the Defendant (who I shall refer to as the Local Authority) have been anonymised.
. The appeal is of an order of Her Honour Judge Howells dated 4 October 2019 (the Order), pursuant to which the Local Authority was permitted to withdraw three admissions of liability made by the Local Authority to J. These admissions were made in two letters written by the Local Authority's solicitors to J's solicitors (respectively dated 5 April 2012 and 3 May 2012) and in the Local Authority's Defence to J's claim, dated 5 December 2012. In the Order, the Judge gave permission to the Local Authority to withdraw its admissions and to amend its Defence. The essence of the draft Amended Defence was to put liability in issue.
. Although the Judge refused permission to appeal the Order, I gave permission to appeal by my order dated 29 May 2020, and the appeal was heard on 17 July 2020. I reserved my judgment. This is that reserved judgment.
B. THE FACTS AND THESE PROCEEDINGS
. J was born on 28 August 2000. He was, at the time of the hearing of this appeal, just short of his twentieth birthday. These proceedings were commenced on 22 August 2012 on J's behalf by his litigation friend, who continues to act for J. The essence of J's claim against the Local Authority is that in breach of its duty, the Local Authority failed to remove J from the care of his mother and his mother's foster parents in the first month of his life and place him for adoption. 2 As well as setting out in detail the Local Authority's alleged breach of duty, 3 the Particulars of Claim referred to two letters in which it was said the Local Authority had – through its solicitors – admitted liability. 4
. The admission of liability was maintained in the Defence that was served by the Local Authority. Paragraph (5) of the Defence pleads as follows:
“As to paragraphs 4 to 54 of the Particulars of Claim:
(a) It is admitted for the purposes of this claim only that the [Local Authority] was in breach of a duty of care owed to [J].
(b) In particular, it is admitted that the [Local Authority] was in breach of duty to [J] in not ensuring that [J] was removed from the care of his birth mother within the first month of life and, thereafter, placed for adoption.
(c) In the circumstances, it is neither necessary nor proportionate for the [Local Authority] to plead specifically to the facts and matters set out at paragraphs 4 to 50 of the Particulars of Claim. In so far as necessary, the [Local Authority] will refer to the records relating to [J] for full particulars of the matters alleged therein.
(d) Further, in the circumstances, in view of the admission made in this Defence (and prior to the issue of these proceedings), it is neither necessary nor proportionate for the [Local Authority] to plead to the specific allegations of breach of statutory duty and/or negligence set out in paragraph 51 of the Particulars of Claim.
(e) Paragraphs 52 to 54 of the Particulars of Claim are admitted.
(f) Otherwise, no admission are made.”
. Pausing there, paragraphs 4 to 54 of the Particulars of Claim set out in detail the events relevant to J's claim and the particulars of breach of statutory duty and/or negligence alleged by J. It will be observed that, in its Defence, the Local Authority refused to plead to the allegations insofar as they were set out and pleaded in paragraphs 4 to 51 of the Particulars of Claim. Such a refusal was only proper because of the admission of liability. It should also be noted that the records referred to in paragraph 5(c) of the Defence have never been disclosed to J or his legal advisers.
. The Local Authority did admit paragraphs 52 to 54 of the Particulars of Claim. These paragraphs plead as follows:
“52. Had the [Local Authority] not acted in breach of duty to [J] the [Local Authority] should have allocated a social worker prior to [J's] birth. That social worker should have undertaken a full assessment of the mother's needs and made plans based on that assessment. Had it done so, it is likely that [J] would have been removed from the care of his mother and [the foster parents of the mother] in the first month of life and placed for adoption.
53. [J] relies upon the [Local Authority's] admission of liability in a letter from its solicitors, Dolmans, dated 5 April 2012, in which it is set out “…liability is admitted in this case, but no admissions are made as to loss or damage”.
54. [J] relies upon the further admission made by the [Local Authority] in a letter from Dolmans Solicitors dated 3 May 2012 in which it was set out “…we have now received our client's further instructions, who like ourselves do not consider that each specific breach needs a response. Having said that, the [Local Authority] admits that but for the alleged breaches of duty, [J] would have been removed in his first month of life and placed for adoption.””
. Paragraphs 55 to 57 of the Particulars of Claim briefly plead J's particulars of injury and special damage. Paragraph (6) of the Defence pleads as follows in response:
“As to paragraphs 55 to 57 of the Particulars of Claim:
(a) The [Local Authority has care of [J] pursuant to a Care Order made by His Honour Judge Furness dated 30 October 2007.
(b) As such, the [Local Authority] has a duty to act in the best interests of [J].
(c) [J] is now aged 12 years 3 months. He is at a sensitive and challenging stage in his development as he approaches puberty.
(d) Although [J] has made progress, he is vulnerable and there is a real risk that his condition will deteriorate if he is subjected to examinations for the purpose of this claim (as opposed to for therapeutic purposes) at this stage in his development. The [Local Authority] reasonably believes that examination(s) by expert(s) for the purpose of this claim at this stage may well have an adverse effect upon [J's] welfare.
(e) The [Local Authority] further believes that it is, in any event, unlikely that a final assessment of [J's] psychiatric and/or psychological condition or prognosis (whether attributable to [J's] breach of duty or other factors such as his genetic heritage) could take place at this time. The [Local Authority] believes that it is likely that a meaningful and final assessment could only take place once [J] is much older and probably not until he is at least 16 years old.
(f) It is unlikely that a Court would approve any settlement of the claim pursuant to CPR 21.10 until a final condition and prognosis report is available. If (an) examination(s) of [J] was/were to be undertaken by a psychiatrist and/or psychologist and/or care expert for the purpose of these proceedings at this time, it is believed that it is, therefore, likely that (an)other examination(s) would inevitably be required at a later stage in any event.
(g) The [Local Authority] believes that it may not be acting in the best interests of [J] having regard to [J's] welfare and/or on accordance with the [Local Authority's] continuing duty to [J] pursuant to section 33 of the Children Act 1989 and/or at common law if it consented to (an) expert examination(s) of [J] at this time for the purpose of these proceedings.
(h) In the circumstances, it is averred that the question of whether [J] should be subjected to examination by psychiatrists and/or psychologists and/or care experts for the purpose of this claim must be raised by [J's] Litigation Friend, the Official Solicitor, as an Application for a Specific Issue Order to His Honour Judge Furness in the family proceedings in the Newport (Gwent) County Court, Case Number NP06C00495, pursuant to section 8(1) of the Children Act 1989.
(i) Further, or alternatively, the claim should be stayed until [J] reaches the age of 16 (28 August 2016), at which time the question of whether it is in [J's] interests for such examination(s) to take place at that time can be reviewed.
(j) At present, no admissions are made as to the injury, loss and/or damage alleged and causation is not admitted.
(k) No Schedule of Loss was served with the Particulars of Claim. However, having regard to the matters set out above, it is not at present contended that a Schedule of Loss should be served.
(l) Otherwise, no admissions are made.”
. It is difficult to overstate the importance of this paragraph in the context of the present claim, because of the conflict of interest that it so clearly articulates. The Local Authority was, at one and the same time:
(1) The defendant to a claim brought by J. As such, the Local Authority was entitled to resist the claim, and put J to proof; and
(2) The entity having care of J pursuant to a care order made on 30 November 2007, 5 with an obligation to act in J's best interests. 6
. Of course, a defendant is perfectly entitled – as the Local Authority did...
To continue reading
Request your trial