Jain v Trent Strategic Health Authority
| Jurisdiction | UK Non-devolved |
| Judge | LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 21 January 2009 |
| Neutral Citation | [2009] UKHL 4 |
| Date | 21 January 2009 |
| Court | House of Lords |
and another
[2009] UKHL 4
Appellate Committee
Lord Scott of Foscote
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellants:
Augustus Ullstein QC
Shirley Hennessy
(Instructed by Barker Gillette LLP)
Respondents:
Colin McCaul QC
(Instructed by Eversheds LLP)
My Lords,
Introduction
This is a case in which the appellants, Mr and Mrs Jain, have had their nursing home business destroyed by executive action taken against them by a regulatory authority, The Nottingham Health Authority ("the Authority"). The Authority's statutory successors, Trent Strategic Health Authority are the respondents to this appeal. They inherit any liability incurred by their predecessors.
The executive action taken by the Authority consisted of an application made, ex parte and without notice, to a magistrate for the cancellation of the registration of Mr and Mrs Jain's nursing home, Ash Lea Court, a requisite under Part II of the Registered Homes Act 1984 for the use of Ash Lea Court as a nursing home. Ash Lea Court had been acquired by Mr and Mrs Jain in 1989 and used as a nursing home to cater for residents who were mentally ill and infirm. Most of them were elderly. Their average age was over 80. Under section 23(1) of the 1984 Act
"Any person who carries on a nursing home or a mental nursing home without being registered under this Part of this Act in respect of that home shall be guilty of an offence."
The cancellation application was made pursuant to section 30 of the 1984 Act. Section 28 gives power to the Secretary of State to cancel the registration of a nursing home but he must give notice of his proposal to do so to the proprietors of the nursing home (see s.31(3)) and they must be given the chance to make representations (s.32). So, if the application is thought to be urgent, section 30 is the route to be followed.
"30(1) If –
(a) the Secretary of State, applies to a justice of the peace for an order -
(i) cancelling the registration of a person in respect of a nursing home or mental nursing home;
(ii) …….;
(iii) ……; and
(b) it appears to the justice of the peace that there will be a serious risk to the life, health or well being of the patients in the home unless the order is made, he may make the order, and the cancellation …. shall have effect from the date on which the order is made.
(2) An application under subsection (1) may be made ex parte, and shall be supported by a written statement of the Secretary of State's reasons for making the application.
(3) An order under subsection (1) above shall be in writing.
(4) Where such an order is made, the Secretary of State shall serve on any person registered in respect of the home, as soon as practicable after the making of the order-
(a) notice of the making of the order and of its terms; and
(b) a copy of the statement of the Secretary of State's reasons which supported his application for the order."
Under section 34 of the Act appeals from orders under section 30 can be made to a Registered Homes Tribunal. The 1984 Act has been repealed and its provisions replaced by the Care Standards Act 2000 but nothing turns on this.
The section 30 application was made by the Authority on 30 September 1998 and came before a stipendiary magistrate sitting at Nottingham on 1 October 1998. It may seem an oddity that the application was made by the Authority and not by the Secretary of State. Section 13 of the National Health Service Act 1977 and directions made under that section are referred to in the appellants' Printed Case in support of I have assumed, therefore, that the Authority was entitled to exercise the Part II powers of the Secretary of State.
The stipendiary magistrate granted the application on 1 October 1998. He made the order sought. It had the effect of requiring the immediate removal from Ash Lea Court of the thirty three elderly and infirm patients who were living there. Mr and Mrs Jain had been given no prior notice of the application or of the grounds on which it was made. They had no opportunity of contesting the enforced closure of their nursing home.
Mr and Mrs Jain's only recourse was to appeal to a Registered Homes Tribunal. This they did. But there was no procedure available for an expedited appeal and no procedure enabling a stay of the magistrate's order pending an appeal to be obtained. We were told that the procedures under which appeals to a Registered Homes Tribunal can be made lead to a minimum delay of six weeks before an appeal can be heard. In the event, Mr and Mrs Jain's appeal was not heard until February 1999, over four months after the order had been made, and, not surprisingly, by the time the appeal was heard irrevocable damage had already been done to their nursing home business, with an adverse knock-on effect on other assets that they owned.
The appeal, heard by the Tribunal on 8 and 9 February 1999, was a resounding success. But the success came too late to afford them more than the satisfaction of vindication. The Tribunal, having heard evidence from the Authority in purported justification for the action they had taken, did not call for any evidence from the Jains in response and were scathing in their criticism of the Authority. In the Tribunal's nineteen page Reasons For Decision one reads of the inclusion of irrelevant and prejudicial information in the statutory statement that had been placed by the Authority before the magistrate, of insinuations by the Authority of abuse of residents notwithstanding the absence of evidence sufficient to justify any charges of abuse, and of untrue suggestions by the Authority of failure by the Jains to comply with various statutory regulations. Some of the complaints made in the statutory statement about the running of the nursing home did, in the view of the Tribunal, have some substance but, commented the Tribunal, "none warranted the immediate closure of the home". They said that "there was no reason for supposing that the residents could not properly have been protected by proper monitoring by the inspectors and the provision of advice where necessary". The statutory statement had complained that building works of improvement being carried out at Ash Lea Court had produced an unsatisfactory physical environment for the residents, but the Tribunal noted that there was no evidence that the dust from the building works "posed any risk to the life or health of the residents" and concluded that the conditions at Ash Lea Court had not justified an application for an order under section 30:
"… the respondents have wholly failed to persuade us that an application for an order cancelling registration under section 30 was an appropriate way of meeting [the Authority's concerns about the running of the nursing home]"
The Tribunal was particularly scathing about the Authority's decision to make their application ex parte and without notice to the Jains. While accepting that there had been "no bad faith" on the part of the officials who, on behalf of the Authority, had been responsible for making the application, the Tribunal said that they could see
"… no justification whatever for the failure to warn [the Jains] that the application was to be made"
So the Tribunal allowed the appeal, set aside the magistrate's order of 1 October 1998 and expressed, as a coda, their regret that they had no power to order the Authority to pay Mr and Mrs Jain's costs: cold comfort, no doubt, for the Jains.
The upshot of this sad story is that Mr and Mrs Jain's nursing home business had been ruined and serious economic harm had been inflicted on them by an ex parte without notice application that ought never to have been made.
The litigation
Being unwilling to accept their undeserved fate, Mr and Mrs Jain have sought a remedy in tort for the economic damage caused to them by the Authority's unjustified application. It was, of course, the magistrate's order that directly caused the damage and a causation point was taken, unsuccessfully, by the respondent health authority both at first instance before Sir Douglas Brown, sitting as an additional judge of the Queen's Bench Division, and before the Court of Appeal. The causation point has not been revived before us. The remaining question on liability, answered in favour of Mr and Mrs Jain by Sir Douglas Brown but adversely to them by the Court of Appeal (Arden and Wilson LLJ, Jacob LJ dissenting), is whether the Authority, in making the application for cancellation in the manner in which they did, were in breach of any tortious duty that they owed Mr and Mrs Jain under domestic law. Since no allegation of bad faith or of misfeasance in public office is made against any of the officers of the Authority, the domestic law cause of action on which the Jains must, and do, rely is the tort of negligence. The difficulty for the Jains is that reliance on the tort of negligence requires them to establish that, in preparing and making their section 30 application, the Authority owed them a duty of care. Sir Douglas Brown and Jacob LJ thought the Authority did owe a duty of care. Arden LJ and Wilson LJ thought they did not. Yours Lordships' opinions on this appeal must resolve the issue.
Before, however, turning to that determinative issue I want to consider the implications of the 1998 Act. The Act, although it received the Royal Assent on 9 November 1998, did not come into effect until 2 October 2000. The Authority's section 30 application and the magistrate's order had been made some two years earlier. The Jains cannot, therefore, pray in aid in the domestic courts their Convention...
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Table of cases
...E.R. 589 (H.L.) ................................................................. 365, 371 Trent Strategic Health Authority v. Jain, [2009] 2 W.L.R. 248 (H.L.) ............... 240 Trevison v. Springman (1995), [1996] 4 W.W.R. 760, 16 B.C.L.R. (3d) 138 (C.A.).......................................
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Table of Cases
...(H.L.) ............................................................................ 348, 353 Trent Strategic Health Authority v. Jain, [2009] 2 W.L.R. 248 (H.L.) ............... 230 Trevison v. Springman (1995), [1996] 4 W.W.R. 760, 16 B.C.L.R. (3d) 138 (C.A.) ....................................