K v (1) Central and North West London Mental Health NHS Trust (2) The Royal Borough of Kensington & Chelsea
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE KING |
| Judgment Date | 30 May 2008 |
| Neutral Citation | [2008] EWHC 1217 (QB) |
| Date | 30 May 2008 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2007/PTA/0354 |
[2008] EWHC 1217 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice King
Case No: QB/2007/PTA/0354
Jenni Richards (instructed by Bindman & Partners) for the Claimant
Jeremy Hyam (instructed by Barlow Lyde & Gilbert) for the 1 st Respondent
Bryan McGuire (instructed by Weightmans) for the 2 nd Respondent
Approved Judgment
Hearing dates: 19 th October 2007 and 19 th November 2007
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.
The Hon Mr Justice King:
This is an appeal against the order of Master Eyre of the 4 th of June 2007 whereby he ordered that the claim form and the re-amended particulars of claim in these proceedings be struck out and that the action be dismissed pursuant to the provisions of CPR part 3 rule 3.4(2) (a) and CPR part 24.2(a) (i). Under CPR 3.4 (2) (a) the court may strike out a statement of case “if it appears to the court – (i) that the statement of case discloses no reasonable grounds for bringing …a claim”. Under CPR 24.2 the court may give summary judgment against a claimant on the whole of a claim if “(a) it considers that – (i) that claimant has no real prospect of succeeding on the claim” and “(b) there is no other compelling reason why the case ….should proceed to trial”.
It is common ground that in order to defeat the application for summary judgment under CPR 24.2 it is sufficient if the claimant can show some “prospect” of success i.e. some chance of success which is “real” in the sense of better than merely arguable even if improbable.
It is equally common ground that a claim should not be struck out under CPR 3.4(2) (a) unless the court is certain that that the claim is bound to fail. In the recent Court of Appeal decision in Smith v. Chief Constable of Essex [2008] EWCA Civ 39, Rimer L. J. agreed that an action which had been struck out by the court below should be restored, because even though in his words “the story of the common law would not therefore appear to promise a favourable outcome to the present claim” (paragraph 40) and “…the claimant's case in the present state of the law (was) “fraught with difficulty” (paragraph 46), he did not regard it “as inevitably doomed to failure”. (paragraph 40).
In this context Miss Richards on behalf of the Appellant has reminded me of several dicta in recent authority to the effect that where what is in issue is in part the existence of a common law duty of care in an area where the applicable law is uncertain and developing, in particular where as here what is asserted on one view of the pleadings is a common law duty of care which mirrors or arises out of a statutory obligation (and an allegation of common law negligence in the carrying out such statutory functions), it is highly desirable that the facts should be found so that any further development of the law should be based on actual and not hypothetical facts. I was referred for example to the observations of Lord Bingham in Barrett v. Enfield LBC [2001] 2 AC 550, at 557-F – G. I was reminded how notwithstanding the apparent definitive ruling of the House of Lords in X (Minors) v. Bedfordshire Council [1995] 2 AC 633 that it was not just and equitable to impose a common law duty on local authorities in respect of their performance of their statutory duties to protect children, subsequent case law has (to cite the words of Lord Nicholls in JD v. East Berkshire HA [2005] UKHL 23 at paragraph 82) “shown this proposition to be stated too broadly”. It is now clear for example that common law duties can exist albeit they mirror or arise out of a statutory duty owed by a local authority both under various child protection statutes (as in Barrett itself) and under the Education Act (as in Phelps v. Hillingdon [2001] 2 AC 619.) A publicly employed health care professional may now owe a common law duty of care to a child with whom that professional is dealing, albeit “until recently it would have been unthinkable” (per Lord Nichols in JD, supra) since “the law has moved on since the decision of your Lordships house in X (Minors) v. Bedfordshire…” (again Lord Nicholls in JD at paragraph 82).
I should say at once that both defendants, the respondents to this appeal, do not dispute that this is the correct approach to any strike – out application. Their main point however is that on any proper analysis of the pleaded claim in this case, (namely that asserted in the Re-Amended Particulars of Claim as purportedly clarified in Replies to Part 18 Requests from each defendant,) the asserted common law duty of care is in fact one said to arise solely out of the statutory duty and associated statutory functions imposed upon the two defendants jointly under section 117 of the Mental Heath Act 1983, and is based upon a background statutory scheme where the applicable area of law is neither uncertain nor developing, but is one in which the issue of the existence of such a common law duty has been conclusively determined against the Appellant by the decision of the Court of Appeal in Clunis v. Camden and Islington Area Heath Authority [1998] QB 971 at 991E – 993C. To quote paragraph 21 (e) of the skeleton argument of the second defendant:
“The well known authorities cited at paragraphs 29 to 33 of the Appellant's Skeleton Argument (a reference to the citation of the post “X” authorities of Barrett Phelps, and JD amongst others) takes matters no further. It is not the defendants' case, nor was it found in Clunis, that no common law duty can exist where the obligations contended for mirrored or arose from a statutory duty. The authority's point is that this particular scheme precludes and has been found to preclude (a reference to Clunis) the existence of a common law duty of care. Barrett and Phelps are not in point. W v. Essex CCmerely confirms that it may be inappropriate to strike out a claim before the true facts have been investigated. But in this case the Claimant has had (including the Answer) 4 attempts to identify the facts said to give rise to a valid claim. This is not a case which requires further investigation”.
Emphasis is put in this context on the observations of Beldam LJ in Clunis at 992
F – G that “the question whether a common law duty exists in parallel with the authority's statutory obligations is profoundly influenced by the surrounding statutory framework: see Lord Browne – Wilkinson in X (minors) v. Bedfordshire at 739c and per Lord Hoffman in Stovin v.Wise [1996] AC 923 ,952–3. So too in this case the statutory framework must be a major consideration in deciding whether it is fair and reasonable for the local health authority to be held responsible for errors and omissions of the kind alleged”.
The simple point made in response to the pleaded case is thus that the only common law duty of care against either defendant put forward on the pleadings is a joint one arising out of their section 117 duty and functions and this has been conclusively held not to be capable of existing by the decision at Clunis encapsulated in the words of Beldam LJ at 991H (“in our view the wording of the section is not apposite to create a private law cause of action for failure to carry out duties under the section”) and at 992B- C; F- G (Is it in the circumstances just and reasonable to superimpose such a common law duty of care on an authority in relation to the performance of its statutory duties to provide after-care? We do not think so. We find it difficult to suppose that Parliament intended to create such an extensive and wide ranging liability for breaches of responsibility under section 117 which would of its nature apply alike to those engaged as professionals as well as those in voluntary services in many disciplines………..the duties of care are it seems to us different in nature from those owed by a doctor to a patient whom he is treating and for whose lack f care in the course of such treatment the local heath authority may be liable”.
This overall submission of the defendants clearly found favour with Master Eyre at paragraphs (1) and (2) of his Ruling where he ruled “(1) The Claimant's own pleading is that the facts of this case are such as to bring his action within the scope of section 117 (2). There is binding authority for the proposition that in such circumstances there is no right of action for breach of any of the after- care obligations”.
The Appellant's pleaded case – his re-amended particulars of claim.
I have no doubt that for the purposes of the strike – out application (and indeed the application for summary judgment) that the strengths or weaknesses of the appellant's claim should be judged by reference to the way it is now set out in his Re-Amended Particulars of Claim (“REAPOC”) dated the 28 th of September 2006, as clarified by his Replies to the Requests for Part 18 information, made by each defendant, and that the appellant is not entitled in response to these applications to seek to disavow his pleaded case or for example to add an alternative basis for his pleaded case in negligence not spelt out in what must be regarded as his definitive pleading, i.e. his REAPOC.
I say this because of the procedural history in this case whereby it is obvious that the appellant has been given a number of opportunities to put his pleaded case in order. Thus on the 21 st of April 2006 the Master having considered that 'the allegations in the Particulars of Claim are throughout set out in a manner that is unfairly hard to understand' required the appellant...
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