UXA v Merseycare NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 21 December 2021 |
| Neutral Citation | [2021] EWHC 3455 (QB) |
| Docket Number | Claim No: F90MA228 |
| Year | 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 3455 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
1 Bridge Street
Manchester
M60 9DJ
Mr Justice Fordham
Claim No: F90MA228
Marc Willems QC, Professor Conor Gearty QC and Peter Edwards (instructed by Lexent Partners) for the Claimant
Charles Feeny and David Lawson (instructed by Hill Dickinson) for the Defendant
Final Approved Judgment
I direct that 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 Fordham
Part 1. Introduction
This judgment addresses questions which have arisen in the present proceedings as a satellite issue (see §5 below). They concern use of, and access to, court documents in circumstances where there has been the “judicial act” (see §10 below) of the Court determining an issue of substance, but this was done without a hearing, there being an agreed final order. The court documents whose use is in issue had all been filed with the Court for reliance by the parties in the proceedings. The judicial act was a declaration of breaches of the Human Rights Act 1998. The Defendant has described the order in question (“the Substantive Order”: see §4 below), which I made without a hearing, as a “proper and public explanation” of the Court's judicial determination. Questions arising include whether the “open justice principle” applies to my determination without a hearing and, if so, what its effect is. There are also questions about: the application of CPR 31.22 (use of disclosed documents); and about the legitimate interests of the parties, and third parties.
I am able to start by expressing confidence about a number of interrelated things. I am confident that a substantive judicial determination without a hearing – such as the Substantive Order in the present case – is part of “the legal process”, which must attract that “transparency” of “open justice” which “lets in the light and allows the public to scrutinise the workings of the law, for better or for worse”: see Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629 (§26 below) at §2. I was exercising “the judicial power of the state”. (Dring Proposition (iii): see §27 below). Like the conduct of a trial which settles part-way without any ruling or judgment, my substantive judicial determination without a hearing was “part of the public judicial function”, to which the principle of “open justice” applies, which principle serves “to facilitate maintenance of the quality of the judicial process in all its dimensions, so that the public may be satisfied that the courts are acting justly and fairly”: Law Debenture Trust Corp (Channel Islands) Ltd v Lexington Insurance Co [2003] EWHC 2297 (Comm) (§24 below) at §34. My determination must engage that “public policy in the administration of justice”, as to which “public knowledge of the evidence and arguments” is “as important as expedition”: Law Debenture at §23. I am confident that the “Counterbalancing Concern” (§28 below) – which arises where the legal process uses the written word, in place of what would traditionally have been the spoken word in the courtroom – is relevant to the present case. I am confident that the Court has the power (indeed the duty) to secure that access to court documents promotes the open justice principle and the public interest, as well as operating in the interests of justice in the individual case, balancing the relevant interests, having regard to the facts that: (i) the parties have agreed a final order and the case is not being proceeded with to trial; and (ii) court orders relating to access to court documents need to be justified, fair, practical and proportionate.
If all or any of these things – about which I have just expressed confidence – were untrue, there would, in my judgment, be seriously detrimental consequences. There would be serious question-marks arising out of the practice enshrined in judicial review cases in CPR PD54A §16.2 (§14 below) and provided by CPR 54.18 (§15 below), given “the constitutional principle of open justice which applies to all courts and tribunals exercising the judicial power of the state” (Dring Proposition (iii): see §27 below). If these things are not true, in the present case I would have convened (and probably in any PD54A §16.2 or CPR 54.18 case I would convene) a SmithKline Hearing (see §41 below), to ensure that the principles and standards of open justice were engaged by and applicable to my judicial act. There has, rightly, been no suggestion that such a hearing would have been in private, applying the principled approach to open justice under CPR 39.2 (§17(6) below). As it happens, a short hearing in public was what the Claimant's legal team was envisaging and inviting. I would convene one, even now, if I thought that determination without a hearing had – by comparison to convening such a hearing – involved a weakening in transparency and open justice standards. But I am satisfied (including after my consideration of the submissions of the parties on the satellite issue) that, following a judicial determination without a hearing, the Court can address the issues relating to access to court documents, without impairment of the interests of justice and the open justice principle. That is what I seek to do in this judgment.
The Substantive Order
I made this Order in these proceedings on 15 October 2021. I will set it out in full below (adding in numbers to the Recitals and using updated numbering for CPR PD54A). In this judgment, I will be referring to the following (as described in the Substantive Order): “the Anonymity Order” (Recital [2]); “the Judgment in Default” (Recital [3]); “the Admissions” (Recital [4]); “the Agreed Five Heads” (Recital [12]); “the HRA Declaration” (Operative Paragraph 2). Here is the text of the Substantive Order:
Recitals:
[1] UPON reading the written submissions of Marc Willems QC, Peter Edwards and Professor Conor Gearty QC (Hon) for the Claimant, and of Charles Feeny and David Lawson for the Defendant, and the parties' agreed draft consent order (8.10.21) .
[2] AND UPON an anonymity order having been made by David Allan QC on 12 th July 2017 and varied by Master Cook on 17 th January 2018 .
[3] AND UPON judgment in default having been entered by Master Cook on 12 th April 2019, with damages to be assessed, in respect of the Claimant's claims of (i) sexual assault; (ii) breach of the common law duty of care/negligence; (iii) misfeasance in public office; (iv) breach of the Defendant's ongoing duty of providing care (also a breach of section 117 of the Mental Health Act, 1983); and (v) the misuse of private information/breach of confidence and breach of data protection .
[4] AND UPON the Defendant having filed admissions on 31 May 2019 (Bundle A page 36–37) .
[5] AND UPON trial (three weeks) having been fixed for Monday 11 th October 2021 of (a) the assessment of damages pursuant to the judgment in default and (b) the Claimant's claims for declarations of breach of the Human Rights Act 1998 .
[6] AND UPON the evidence filed by the parties with the Court including an Agreed Joint Psychiatric Statement (28.5.21) written by the parties' expert Consultant Psychiatrists (Dr Daly and Dr Adshead) .
[7] AND UPON the parties having reached terms of settlement in respect of damages and costs at a Mediation held on 4 th October 2021 .
[8] AND UPON the parties having reached agreement, subject to the Court's approval, on the declarations that are appropriate under the Human Rights Act 1998 .
[9] AND UPON it being acknowledged by the parties that the damages include a substantial sum in respect of psychotherapy and related treatment .
[10] AND UPON the parties having confirmed that the terms of the financial settlement do not require Court Approval since it is common ground that the Claimant has litigation capacity .
[11] AND UPON it being agreed between the parties that:
(1) The agreed damages are paid and the Declaration agreed in full and final settlement of all claims made by the Claimant arising out of the issues in this litigation .
(2) The Claimant undertakes not to issue any further proceedings, or make any further claim, against the Defendant Trust its predecessors or any Director, officer, employee (past or present) in relation to the index events .
[12] AND UPON the following matters, which form the basis of the declaration in this Order, being agreed between the parties:
(1) The relationship between the Defendant's employee PD and the Claimant was an “abusive relationship” (see paragraph (5) below) which was (a) a criminal offence by PD contrary to section 38 of the Sexual Offences Act 2003 and (b) a gross breach of PD's duties as a nurse for which PD would have been dismissed (had he not resigned) and for which PD was struck off by the Nursing and Midwifery Council .
(2) There was a corporate failure by the Defendant to ensure (a) that it carried out adequate supervision of PD and (b) that he kept adequate records of his contact with UXA .
(3) The events in paragraphs (1) and (2) materially contributed to the Claimant's serious self-harming and her risk of suicide .
(4) The Defendant failed in a timely manner to report the abuse after its disclosure on 21 st March 2016 as a Serious Untoward Incident Review through the Strategic Executive Information System, thereby failing to make timely notification of the abuse to the Care Quality Commission .
(5) PD's abusive relationship with the Claimant from July 2015 until 2 May 2016 was a breach of the Claimant's Article 2 and 3 rights and, given the consequent loss of contact with her daughter, a breach of the Claimant's...
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