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Session 2008 - 09 Publications on the Internet Judgments PDF Print Version 
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| Judgments - Trent Strategic Health Authority (Respondents) v Jain and another (Appellants)
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HOUSE OF LORDS SESSION 2008-09 [2009] UKHL 4 on appeal from:[2007]EWCA Civ 1186
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Trent Strategic Health Authority (Respondents) v Jain and another (Appellants) Appellate Committee Lord Scott of Foscote Lord Rodger of Earlsferry Baroness Hale of Richmond Lord Carswell Lord Neuberger of Abbotsbury Counsel Appellants: Augustus Ullstein QC Shirley Hennessy (Instructed by Barker Gillette LLP) Respondents: Colin McCaul QC (Instructed by Eversheds LLP) Hearing date : 29 OCTOBER 2008 ON WEDNESDAY 21 JANUARY 2009 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Trent Strategic Health Authority (Respondents) v Jain and another (Appellants) [2009] UKHL 4 LORD SCOTT OF FOSCOTE My Lords, Introduction 1. 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. 2. 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.” 3. 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. 4. 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. 5. 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. 6. 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. 7. 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]” 8. 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. 9. 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 10. 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. The Human Rights Act 1998 11. 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 rights incorporated into domestic law by the 1998 Act. If, however, those events had happened after 2 October 2000, it seems to me, as at present advised, that Mr and Mrs Jain would have had a sound case for contending for a remedy under that Act. If that is right, it is, to my mind a consideration which bears upon the question whether this House should now, after the enactment of the 1998 Act, develop the duty of care so as to provide a common law tort remedy in cases such as this. The point that such a development should be left to Parliament would have particular force, as it seems to me, where Parliament had already legislated and had provided a domestic law remedy. With some trepidation, therefore, for this is not a matter that has been addressed by counsel, it seems to me worth considering how this case would look if the 1998 Act had been applicable. 12. Two Convention rights would, I think, have been in play. Article 1 of the First Protocol to the Convention provides that - “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law …” The benefit of registration of Ash Lea Court under Part II of the 1984 Act, enabling Mr and Mrs Jain to use the property as a nursing home, would, in my opinion, qualify as a possession for Article 1 purposes (see Van Marle v Netherlands (1986) 8 EHRR 483 where the goodwill of a business qualified as an Article 1 possession). The Article 1 right to enjoy possessions is, of course, not an unqualified right. It is subject to the State’s entitlement to impose limitations where other important interests are at stake. The State is plainly entitled in the public interest to impose limitations for the purpose of safeguarding vulnerable people, such as elderly and infirm residents in nursing homes. 13. Limitations imposed in the public interest on rights to the enjoyment of possessions must, however, be reasonable and proportionate to the purpose sought to be achieved. As the Strasbourg court observed in Sporrong & Lönnroth v Sweden (1982) 5 EHRR 35, paragraph 69 : “… the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights….” And in striking the “fair balance” the requirements of Article 6 of the Convention must, in cases where the interference with possessions requires a judicial or quasi-judicial ruling, surely be borne in mind : “6.1 In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing …” The right under Article 6 to a “fair and public hearing” becomes very relevant when a judicial or quasi-judicial order has deprived an individual of his possessions, has been made at a hearing of which he was given no notice, is an order that he has had no opportunity of resisting until it is too late, and has been made in response to an application by the State or agents of the State that ought not to have been made. 14. It is easy to accept that the statutory requirement for registration of a nursing home as a condition of the use of premises for that purpose is an unexceptionable limitation on Article 1 of the First Protocol rights, that statutory provision enabling an application to be made to a court or tribunal for cancellation, on sufficient cause being shown, of the registration of a registered nursing home, too, is a necessary limitation, that in cases of urgency, where delay in making the application may leave the lives or health of residents in a nursing home at risk for an unacceptable period, an immediate application without the period of notice normally required may be necessary, and that in really extreme cases it may be necessary to make the application without any prior notice being given to the proprietors of the target nursing home. But an application to a court or a tribunal without prior notice to a respondent whose economic interests will be prejudiced, perhaps severely, by the order that is sought has an inherent potential for injustice and can be acceptable, and compatible with the Convention rights guaranteed under Article 6 and Article 1 of the First Protocol, only if hedged around with precautions and procedures designed to limit the injustice so far as practicable. 15. The vice and potential injustice of ex parte applications made without notice to the respondent and of orders that are made on such applications and executed immediately with consequent damage, sometimes irreversible, to the respondent’s business, became apparent in the early years of Mareva injunctions and Anton Piller orders. It became apparent to me when hearing an application in the Chancery Division consequent upon the grant ex parte of a Mareva injunction and Anton Piller order against a copyright pirate. The case was Columbia Pictures Industries Inc v Robinson [1987] Ch 38 and the facts of the present case brought the respondent’s complaints in that case vividly to my mind. I noted in that case that “It is a fundamental principle of civil jurisprudence in this country that citizens are not to be deprived of their property by judicial or quasi-judicial order without a fair hearing” (p.73). and asked “what is to be said of the Anton Piller procedure which, on a regular and institutionalised basis, is depriving citizens of their property and closing down their businesses by orders made ex parte, on applications of which they know nothing and at which they cannot be heard, by orders which they are forced …. to obey, even if wrongly made?” (p.74). All of this could be said of the procedure employed by the Authority in their section 30 application in the present case, save, I hope, that the ex parte without notice procedure is not used on a “regular and institutionalised basis” (but see Lyons v East Sussex County Council (1987) 86 LGR 369). 16. Orders in response to ex parte without notice applications made in the High Court, of whatever variety, are accompanied by procedural safeguards for the protection of absent respondents that are apparently not available where such applications are made to a magistrate under section 30 of the 1984 Act, or, for that matter, under section 11 (see Lyons v East Sussex County Council). First, the High Court judge can, and usually does, require a cross-undertaking in damages to be given by the applicant for the order, undertaking that, if it turns out that the order ought not to have been granted and has caused loss to the respondent, the applicant will compensate the respondent in such sum as the court may think right. Such undertakings are not required by magistrates as a condition of making section 30, or section 11, orders on ex parte applications and there appears to be good reason to doubt whether a magistrate would have power to exact such an undertaking and whether, or how, the undertaking, if exacted, would be enforceable. Second, an order made by a court on an ex parte application can be the object of an immediate application by the respondent for the order to be set aside or stayed until his response to the application for the order can be heard. This procedure is not available under the 1984 Act; all that can be done by the respondent against whom and in whose absence the ex parte order has been made is to appeal the order and wait for a minimum of six weeks for the appeal to be heard - by which time the damage done to the nursing home business that has been closed down may, as here, be irreversible. Third, it is accepted that on an ex parte application to the High Court the applicant, and the lawyers acting for the applicant, owe duties to the court to make full and fair disclosure of all facts and matters known to them relevant to the application and to the order being sought. A breach of this duty can be dealt with by the immediate discharge of the order, and by an indemnity costs order against the applicant for the order. I am not clear whether a similar duty should be regarded as resting on those who apply for ex parte orders under section 30, or section 11, of the 1984 Act, but even if it should be so regarded, the tools available to a magistrate to enforce the duty and impose a sanction for any breach appear to be non-existent. 17. My Lords the safeguards to which I have referred, which, in my opinion, render, in principle, the procedures attending ex parte without notice applications in the High Court and orders made in response thereto Convention compliant, appear to be wholly absent when ex parte applications for orders under the 1984 Act are made. I find it very difficult to see how the 1984 Act procedures for these applications can be regarded as compliant with Article 6, or how the making of an order under the Act in response to such an application can be regarded as having been made in the public interest for Article 1 of the First Protocol purposes where, as here, it is established, albeit late in the day, that the application ought never to have been made. 18. My Lords, the considerations to which I have referred lead me to suppose that, if the application and order of which Mr and Mrs Jain complain had post-dated 2 October 2000, they would have been entitled to compensation under domestic law. How could it be compatible with their Convention rights to deprive them by judicial order of the benefit of registration of their Ash Lea Court nursing home without according them the opportunity of showing the application to be insubstantial and based on insufficient grounds and without there being any circumstances of urgency arguably sufficient to justify depriving them of that opportunity? The duty of care 19. As it is, however, the 1998 Act is not available to provide a domestic law remedy to Mr and Mrs Jain. A remedy for breach of their pre 2 October 2000 Convention rights can only be obtained from Strasbourg. But before they can apply to Strasbourg they must exhaust their domestic remedies, hence the litigation commenced by Mr and Mrs Jain that is now before the House and the success of which requires them to persuade your Lordships that, in the circumstances of this case, a duty of care was owed to them by the Authority. 20. My Lords, I am of the opinion, in agreement with the majority in the Court of Appeal, and substantially for the reasons they have given, that an authority making an application to a magistrate under section 30 for the cancellation of the registration of a nursing home, or, for that matter, under section 11 for the cancellation of the registration of a residential care home, does not owe a common law duty of care to the proprietors of the home. In making the application the authority is exercising a statutory power. The purpose of the power is the protection of the residents in the home in question. It might be fair and reasonable to conclude that the authority did owe a common law duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority’s statutory powers had come to the authority’s attention but nothing had been done. But to conclude that an authority exercising, or deciding whether to exercise, its statutory powers owed a duty of care also to the proprietors of the home seems to me much more difficult. 21. There are two lines of authority which bear upon this issue. One line of authority consists of cases where the exercise of statutory powers conferred for the protection of a certain class of persons will or may impinge on the interests of others. The other line of authority consists of cases where the bringing of unsuccessful judicial or quasi-judicial proceedings has resulted in economic loss to the eventually successful respondent. 22. Cases in the first mentioned line of authority include D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151; [2004] QB 558, in which the judgment of the Court of Appeal, handed down by Lord Phillips of Worth Matravers M.R. (as he then was), contains a valuable review of cases in this line of authority. The Court of Appeal was hearing three appeals each of which involved accusations of abuse of a child made against a parent of the child by the professionals concerned for the welfare of the child. In each case, the accusations having proved unfounded, the parent claimed damages in negligence for psychiatric harm alleged to have been caused by the false accusations. In each case, therefore, the question arose whether the professionals, who had a statutory duty, and perhaps a common law duty too, towards the child, owed a common law duty of care to the parent. 23. The Court of Appeal concluded that while a common law duty of care might on the individual facts of a particular case be owed to the child, no common law duty of care was owed to the parent. In paragraph 86 the Court explained why. “… Where the issue is whether a child should be removed from the parents, the best interests of the child may lead to the answer yes or no. The Strasbourg cases demonstrate that failure to remove a child from the parents can as readily give rise to a valid claim by the child as a decision to remove the child. The same is not true of the parents’ position. It will always be in the parents’ interests that the child should not be removed. Thus the child’s interests are in potential conflict with the interests of the parents. In view of this, we consider that there are cogent reasons of public policy for concluding that, where child care decisions are being taken, no common law duty of care should be owed to the parents.” An appeal by the parent to this House was dismissed: [2005] UKHL 23; [2005] 2 AC 373. Lord Nicholls of Birkenhead, in paragraph 85, expressed the same “conflict of interest” reason that had been given by the Court of Appeal. So, too, did Lord Rodger of Earlsferry (para.110) and Lord Brown of Eaton-under-Heywood (para.129). Lord Steyn expressed his agreement with the opinions they had given. |
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