R (Cowl and Others) v Plymouth City Council
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 2001 |
| Neutral Citation | [2001] EWCA Civ 1935 |
| Docket Number | Case No: 2001/2067 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2001 |
[2001] EWCA Civ 1935
The Lord Chief Justice of England and Wales
Lord Justice Mummery and
Lord Justice Buxton
Case No: 2001/2067
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Richard Wilmot Smith QC & Miss Jenni Richards (instructed by Mackintosh Duncan) appeared for the Appellants
Mr Roger McCarthy QC (instructed by Plymouth Legal Practice) appeared for the Respondents
The importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Particularly in the case of these disputes both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress.
The appeal also demonstrates that courts should scrutinise extremely carefully applications for judicial review in the case of applications of the class with which this appeal is concerned. The courts should then make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts. The legal aid authorities should co-operate in support of this approach.
To achieve this objective the court may have to hold, on its own initiative, an inter partes hearing at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the courts. In particular the parties should be asked why a complaints procedure or some other form of ADR has not been used or adapted to resolve or reduce the issues which are in dispute. If litigation is necessary the courts should deter the parties from adopting an unnecessarily confrontational approach to the litigation. If this had happened in this case many thousands of pounds in costs could have been saved and considerable stress to the parties could have been avoided.
The appeal relates to an application for judicial review by originally eight, but now seven claimants, who reside in Granby Way, a residential care home owned and run by Plymouth City Council (“Plymouth”). The eighth claimant has sadly died during the course of the proceedings. Their ages vary between 77 and 92 with the exception of one claimant who is only 66. They are all frail and in poor health and have lived at Granby Way for differing periods, the longest period being about nine years.
The claimants seek judicial review of a decision by Plymouth dated the 5 th of February 2001 which confirmed the decision of its social services committee of the 23 rd January 2001 to close two homes, one of which, Granby Way, is occupied by the claimants.
The claimants all regard Granby Way as their home. Naturally they are extremely upset at the prospect of having to live elsewhere. Their distress at possibly having to move is increased by the fact that at least three of their number claim they have a legitimate expectation that Granby Way would be their home for life. This is alleged to follow from assurances to that effect made by employees of Plymouth.
On 4 May 2001, an application for permission to apply for judicial review was made by the claimants. On 13 June 2001 Harrison J directed an oral hearing of the application and this was heard by him on 19 June. The hearing was expedited because the claimants contended that they were in urgent need of protection. This was despite the fact that on 10 May Plymouth had written to the court indicating its willingness to undertake not to move the claimants from Granby Way for a period of six weeks and a complaints procedure existed and there is a statutory complaints procedure.
In their application, the claimants are seeking to have the closure decision quashed. They are also seeking an order to compel Plymouth to carry out “lawful and comprehensive assessments of the residents’ community care needs and to prepare ‘care plans’ in respect of each resident in accordance with government guidance”. In addition, declarations are claimed based on the failure of Plymouth to carry out a comprehensive assessment of the consequences of a move on the claimants and to prepare appropriate care plans. Inherent in the litigation is the fact that the claimants cannot do better than achieve the consideration of the question of closure in conjunction with a proper assessment of the claimants’ needs and care plans.
This being the position, the response of Plymouth to the application for permission should have been regarded as positive. The response was contained in an open letter of 23 May. The letter indicates the view of Plymouth that the application raises “no relevant arguable issues of legal principle”. The letter sets out matters of law upon which Plymouth considered there was agreement and issues of law upon which there was no agreement but which Plymouth considered were not relevant. This was because Plymouth was at all material times prepared to assume that the claimants' view of the law was correct. The letter also states that Plymouth was willing to treat the claimants' grounds for seeking judicial review and the evidence submitted in support as a complaint submitted by a qualifying individual on behalf of each of claimants. Plymouth would consider each of those complaints pursuant to section 7B on the Local Authority Social Services Act 1970. The letter added that Plymouth was willing to put the complaint before a panel to be convened as soon as reasonably practicable to be chaired by an independent person within the meaning of the 1990 directions. The letter added that the panel will be able to consider written and oral submissions by the residents or on their behalf, on among other matters, the question of whether any of the claimants were given “home for life” promises upon which they were entitled to rely. Although the panel's decisions are not strictly binding on the local authority, Plymouth stated that it was conscious of the need to give sufficient weight to its conclusions, and to the consequences of not doing so, as set out in R v Avon CC ex parte M [1994] 2FLR1006.
The letter added that the statutory complaints regime was expressly designed to assist complaints “in relation to the discharge of, or any failure to discharge any of, an authority's social services functions” in respect of particular applicants. It was stated that the regime was well suited to resolve the issues the claimants raised about the assessments. In addition the letter gave an assurance that there was no question of services being reduced or Plymouth moving any of the claimants (unless their condition demanded this) until the conclusion of the complaints process. The letter concluded by referring to a judgment of Schiemann LJ in Lloyd v Barking and Dagenham LBC [2001] EWCA CIV 533, 11 April 2001, and pointing out the limits on the resources of Plymouth and the fact that the claimants were publicly funded.
This was a very sensible proposal to make. It may not have been couched in the ideal terms but any necessary modification could and should have been the subject of negotiations. However, instead, the wheels of the litigation began turning. The letter did not stop their progress; first to a procedural hearing before Harrison J and then to a full hearing before Scott Baker J.
The chronology prepared on behalf of the complainants explains what they contend happened at the hearing before Harrison J. It was held on 19 June 2001. "[Plymouth] sought adjournment of the permission hearing so that it could flesh out its complaint procedure proposals; [Plymouth] expressly accepted that the current proposals could not be properly considered because insufficient information was provided and confirmed that it did not suggest that the complaints procedure was an alternative remedy to judicial review.” Plymouth's skeleton puts forward a different picture. If that skeleton is correct Plymouth were adopting a course of which we would approve. An adjournment was refused and permission granted by Harrison J.
We do not have a transcript of the hearing before Harrison J. There was no appeal from his decision and we do not criticise his decision. However, with the benefit of hindsight, it seems unfortunate that, even though Plymouth should have not been in a situation where they had to seek an adjournment, the use of the complaints procedure was not explored even if this meant an adjournment was necessary. A great deal of expense, a great deal of time and a great deal of anxiety to the claimants could have been avoided if the complaints procedure had been used.
It appears that one reason why the wheels of the litigation may have continued to roll is that both parties were under the impression that unless they agreed otherwise the complainants were entitled to proceed with their application for judicial review unless the complaints procedure on offer technically constituted an “alternative remedy” which would fulfil all the functions of judicial review. This is too narrow an approach to adopt when considering whether an application to judicial review should be stayed. The parties do not today, under the CPR, have a right to have a resolution of their respective contentions by judicial review in the absence of an alternative procedure which would cover exactly the same ground as judicial review. The courts should not...
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