(back to preceding text)

24.  B v Attorney General of New Zealand [2003] UKPC 61; [2003] 4 All ER 833 was a case that arose out of the belief by a social worker that a child was the victim of sexual abuse by a parent. A statutory duty to investigate was cast by the Children and Young Persons Act (New Zealand) 1974 on the Director General of Social Welfare if he had reason to suspect that a child was suffering or was likely to suffer from ill treatment. Both the parent and the child subsequently claimed damages in respect of the allegedly negligent way in which the investigation had been conducted. The issue for the New Zealand courts and, on appeal, for the Privy Council was whether a tortious duty of care was owed and, if so, to whom. The New Zealand courts held that no duty of care was owed. The judgment of the Board, delivered by Lord Nicholls of Birkenhead, allowed the appeal by the child but dismissed that of the parent. The Board said, in paragraph 30 (p.841) that

“… to impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one and the same time, in favour of the alleged perpetrator would not be satisfactory.”

25.  M v Newham London Borough Council [1995] 2 AC 633 was one of the appeals heard by the House of Lords at the same time as, and reported with, X v Bedfordshire County Council and three other appeals. In the Newham case the Council, in reliance on a social worker’s suspicions that a child was suffering sexual abuse, removed the child from her mother’s care. The suspicions were mistaken and both the mother and the child sued in negligence for damages for psychiatric harm brought about by their separation. This House held that no duty of care was owed either to the child or to the mother. Subsequent cases, fully reviewed by the Court of Appeal in the D v East Berkshire case, have placed a question mark against the conclusion that no duty of care was owed to the child, but the authority of the Newham case for the proposition that no duty of care was owed to the mother remains unshaken. The social worker’s, and the Council’s, statutory duty had been owed to the child. That duty provided no basis for the imposition on the authority of a duty of care owed to the mother.

26.  The cases to which I have referred are cases in which the damage complained of was personal damage. The cases where the damage complained of was economic show similar conclusions for similar reasons. Harris v Evans [1998] 1 WLR 1285 was a case in which the Court of Appeal held that the Health and Safety Executive and their inspectors, when requiring steps to be taken by the proprietor of bungee jumping facilities in order to improve the safety of members of the public using those facilities, did not owe a tortious duty of care to the proprietor of the facilities who had suffered economic damage on account of their requirements, some of which turned out to have been misconceived. Their duty, a statutory one, was owed to the members of the public using the facilities.

27.  Similarly, it was held in Reeman v Department of Transport [1997] 2 Lloyds Rep 648 that the Department did not owe a duty of care to the purchaser of a fishing boat who had relied on an incorrect safety certificate in respect of the vessel. The object of the statutory scheme pursuant to which the certificate had been issued was to promote safety at sea and not to safeguard the economic interests of purchasers of the vessels. This decision appears to me to be on all fours with the great case of Caparo Industries plc v Dickman [1990] 2 AC 605, where this House held that the auditors of a company’s accounts did not owe a duty of care to potential purchasers of shares in the company. Their duty of care was owed to the company and its current shareholders.

28.  This line of authority demonstrates, in my opinion, that where action is taken by a State authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care will not be held to be owed by the State authority to others whose interests may be adversely affected by an exercise of the statutory power. The reason is that the imposition of such a duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of their statutory purpose.

29.  The second line of authority relates, as I have said, to the conduct of, or to steps taken in preparation for, litigation and includes both civil and criminal cases. In Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 the Court of Appeal held that the Crown Prosecution Service owed no general duty of care to a particular defendant in their conduct of a prosecution of him : per Steyn LJ at 348

“In the absence of a specific assumption of responsibility lawyers engaged in hostile civil litigation are not liable in negligence to the opposing party”

and, at 349

“… there is no duty of care owed by the CPS to those it prosecutes.”

In Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495 Lord Rodger of Earlsferry (at 1511, para 38) referred with approval to Elguzouli-Daf which showed, he said, that

“… the Crown Prosecution Service and the police owe no duty of care to a defendant against whom they institute and maintain proceedings. The reasons are general, but nonetheless persuasive.”

30.  In Business Computers International Ltd v Registrar of Companies [1988] Ch 229 I struck out a claim for damages in negligence brought by a company which had been made the object of a winding-up order on a petition that had never been served on the company. The petition had been served at the address stated in the petition to be the company’s registered address. But it was the wrong address. The company did not know the petition had been issued, did not appear at the hearing of the petition and, the petition appearing to the judge to be regular, the winding-up order had been made. The company succeeded in getting the winding-up order set aside but it sued the petitioner in negligence for the damage it claimed it had suffered. The petitioner’s application to have the negligence action against it struck out succeeded on the ground that it had not owed the company a tortious duty of care. I held, at 239, that it was not “just and reasonable that a plaintiff should owe a duty of care to a defendant in regard to service of the originating process” and said that “the safeguards against ineffective service of process ought to be … found in the rules and procedures that govern litigation", and, at 241, that -

“… there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process or in regard to any other step in the proceedings. The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort.”

31.  In Customs & Excise Commissioners v Barclays Bank plc [2006] UKHL 28; [2007] 1 AC 181 the issue was whether a bank, which had been given notice of a court order freezing an account held by one of the bank’s customers, owed the party who had obtained the order a duty of care to comply with its terms. The first instance judge, Colman J, had held that the duty of care was not owed by the bank, the Court of Appeal had disagreed, and the issue came before the House. The House, like Colman J, held that no duty of care was owed. The judgments of their Lordships repay careful reading but it will suffice for present purposes, I think, to refer to a few short passages. Lord Bingham of Cornhill at 195 (para.18) said that

“… it cannot be suggested that the customer [the party against which the freezing injunction had been obtained] owes a duty to the party which obtains an order, since they are opposing parties in litigation and no duty is owed by a litigating party to its opponent …”

Lord Rodger of Earlsferry at 202 (para.47) said that

“When parties embark on contested court proceedings, even under the rules of procedure in force today, they are entitled to treat the other side as opponents whom they wish to vanquish. So they do not owe them a duty of care.”

Both their Lordships cited with approval the Business Computers case.

32.  Finally I should refer to Martine v South East Kent Health Authority (1993) 20 BMLR 51, a decision of the Court of Appeal on the very question in issue in the present case, namely, whether a common law duty of care is owed to the proprietors of a registered nursing home by a health authority that makes a section 30 application for the cancellation of the registration. The Court of Appeal held that a duty of care was not owed and the question whether Martine was rightly decided is identified in the Statement of Facts and Issues signed by the respective counsel for the parties to this appeal as one of the issues to be decided by the House.

33.  As in the present case, the section 30 application made in Martine was made ex parte. It was supported by a written statement of the reasons for making the order made by the health authority’s chief nursing officer. The order cancelling the registration was made by the magistrate and the nursing home was perforce closed with financial loss to its proprietor. As in the present case, the proprietor appealed to a registered homes tribunal which, having heard the appeal, found that the facts relied on in support of the application did not provide grounds for seeking or granting the order. So the section 30 order was set aside and, again as in the present case, the proprietor brought an action in negligence (combined with an action for malicious prosecution) against the health authority. The first instance judge struck out the negligence claim, the plaintiff appealed and, as here, the issue for the Court of Appeal was whether the health authority had owed the plaintiff the requisite duty of care.

34.  Dillon LJ, who gave the leading judgment, referred to the Business Computers case and approved the conclusion that

“… it was not just or reasonable … that there should be a duty of care because the adversarial system of litigation has its own rules and requirements, which operate as checks and balances”

and that if in any circumstances the checks and balances should fail

“… negligence as a tort could not be, and should not be, invoked as the remedy.”

“So it is", said Dillon LJ, “with the statutory procedure under section 30 of the 1984 Act". The statutory check on an unjustified section 30 application was, he pointed out, that the order had to be made by a magistrate, so that if the health authority failed to put forward an adequate case

“… it would be the duty of the justice of the peace to ask for more information or reject the case until it has been more fully made out.”

He concluded that

“… there is no warrant … for extending the duty of care in these circumstances.”

Leggatt LJ expressed himself to the same effect.

“The prescribed procedure is fast, and interposes only a sole justice of the peace between a health authority in pursuit of an order under the Act and the owner of a nursing home. But the fact that the safeguard is slight does not entitle a litigant to make good a supposed deficiency in the statutory procedure by recourse to the tort of negligence.”

35.  My Lords, the cases in this second line of authority, including Martine, which I regard as having been rightly decided, establish, in my opinion, that where the preparation for, or the commencement or conduct of, judicial proceedings before a court, or of quasi-judicial proceedings before a tribunal such as a registered homes tribunal, has the potential to cause damage to a party to the proceedings, whether personal damage such as psychiatric injury or economic damage as in the present case, a remedy for the damage cannot be obtained via the imposition on the opposing party of a common law duty of care. The protection of parties to litigation from damage caused to them by the litigation or by orders made in the course of the litigation must depend upon the control of the litigation by the court or tribunal in charge of it and the rules and procedures under which the litigation is conducted.

36.  Each of these lines of authority leads to the conclusion that this appeal must be dismissed. The 1984 Act conferred statutory powers on registration authorities. These powers enable registration authorities to entertain applications for registration of nursing homes (s.23), to refuse such applications (s.25), to cancel registrations (s.28 but subject to the procedures required under ss 31 to 33) and to apply ex parte to a magistrate for an order cancelling registrations with immediate effect (s.30). The exercise of the powers under sections 25, 28 and 30 may often, perhaps usually, cause economic damage to the proprietors of the nursing homes, or, in the case of section 25, the intended nursing homes. The purpose of these powers, however, is to protect the interests of the residents in nursing homes. The interests of the proprietors of nursing homes that the homes should remain open for that use “are in potential conflict with the interests of …” the residents (see D v East Berkshire Community NHS Trust para.86, cited in para.23 above).

37.  As to the second line of authority, there is, in my opinion, as I hope I have made clear, a lamentable lack in the statutory procedures prescribed for section 30 applications of reasonable safeguards for the absent respondents against whom these applications, ex parte and without notice, can be made. The only safeguard, as Dillon LJ observed in the Martine case, is that the cancellation order must be made by a magistrate. The clear inadequacy of that as a sufficient safeguard does not, in my opinion, justify the creation of a duty of care. The remedy lies, surely, in the amendment of the procedures so as to incorporate safeguards on the lines of those that attend applications in the High Court for ex parte orders. My opinion that the role of the magistrate is, by itself, an inadequate safeguard against injustice to absent respondents is not based on any adverse opinion of the quality of magistrates but rather on the inability of any judge hearing an ex parte application in the absence of the respondent to guard against potential injustice. A judge, or magistrate, may often be sceptical as to whether assertions of imminent risk of disaster made by an applicant for an ex parte order are well founded but, lacking any means of testing them and faced with the possibility that they may be well founded, has often no real alternative but to accept them at their face value and to make the order sought.

38.  The remedy for this does not, in my opinion, lie in the creation and imposition on the registered authority of an inappropriate duty of care owed to the proprietors of the nursing homes in question. It lies in the formulation and application of procedural safeguards comparable to those attendant upon ex parte applications in the High Court. The Secretary of State has power, under section 9(2) of the Protection of Children Act 1999, by regulations to “make provision about the proceedings of the Tribunal” before which now, under the Care Standards Act 2000, appeals against orders made by magistrates under section 20 of that Act, replacing section 30 of the 1984 Act, must be brought. It is doubtful whether this power would permit the Secretary of State to make a regulation enabling the Tribunal to grant a stay of a magistrate’s order pending the hearing of an appeal. But procedure for an expedited appeal could surely be provided. As to the proceedings in the magistrates court, a discretionary power for magistrates to require cross-undertakings in damages to be given by applicants for ex parte orders, coupled with means of enforcement, would be an obvious and important procedural safeguard. Another would be the requirement that, unless impracticable, short notice of the intention to make the ex parte application be given to the proprietor, or manager, of the nursing home. And, also, power for a magistrate, on sufficient cause being shown, to entertain an application for, and to grant, an immediate stay of an order made ex parte might prevent the sort of injustice that occurred in the present case. Sections 144 and 145 of the Magistrates’ Courts Act 1980 appear to me to provide the necessary statutory authority for rules of this sort to be made. A further safeguard would be an explicit statement that the applicant’s duty to the magistrate to whom the application was to be made was a duty of full and fair disclosure, again, with sanctions available to be employed by the magistrate in the event of any breach. If procedural improvements on these lines are not introduced, the 2000 Act section 20 procedure will continue to appear, as the 1984 Act section 30 procedure appears to me now, to be incompatible with the Convention rights of those against whom these ex parte applications are made.

39.  It is, moreover, the case that, post-2 October 2000, article 6 and article 1 of the First Protocol have become part of our domestic law and that breaches of these articles can be met by damages remedies under domestic law. As Lord Brown of Eaton-under-Heywood observed in Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2008] 3 WLR 593 at 633/4 (para.136)

“… it is quite simply unnecessary now to develop the common law to provide a parallel cause of action”

40.  Accordingly, with regret and with very great sympathy for the endeavours of Sir Douglas Brown and Jacob LJ to fashion a domestic law remedy for Mr and Mrs Jain, I would dismiss this appeal

LORD RODGER OF EARLSFERRY

My Lords,

41.  I have had the advantage of considering the speech of my noble and learned friend, Lord Scott of Foscote, in draft. Since counsel did not make submissions on the point, I prefer not to speculate on the position if the Human Rights Act 1998 had been in force when the relevant events took place. Leaving that matter on one side, I am in full agreement with Lord Scott’s reasons for dismissing the appeal, as well as with the further observations of my noble and learned friend, Lord Carswell.

BARONESS HALE OF RICHMOND

My Lords,

42.  When refusing leave to appeal to this House, Jacobs LJ expressed the hope that we would give leave: “In my view, the injustice sanctioned by the majority of this court, if a true consequence of the law, should be sanctioned at the highest level". We did give leave, because we shared his view that there was indeed a serious injustice here which deserved a remedy. It is with the greatest of regret that we have all reached the conclusion that the common law of negligence does not supply one. I have nothing to add to the reasons given by my noble and learned friend Lord Scott of Foscote for reaching that conclusion.

43.  However, the Human Rights Act 1998 is expressly designed to offer individuals a remedy, if need be in damages, against public authorities which act incompatibly with their Convention rights. That is one of the great benefits brought by the Act to people who have been wronged by an abuse of executive power. It is, to say the least, arguable that this public authority did indeed act incompatibly with two of the Convention rights. Under article 6(1) of the Convention, “In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Mr and Mrs Jain did eventually achieve such a hearing before the Registered Homes Tribunal and as a general rule, article 6(1) does not apply to interim measures such as the Magistrate’s order. However, article 6(1) can apply to interim measures if their practical effect is to determine the rights in question, as was the case here. The home was instantly closed down, the residents dispersed, and Mr and Mrs Jain were ruined. This is the sort of irreparable damage which can mean that even interim measures must comply with article 6(1): see, for example, Markass Car Hire Ltd v Cyprus, application no 51591/99, 23 October 2001; Zlínslat, Spol. S.R.O. v Bulgaria, application no 57785/00, 15 June 2006. Each of those cases concerned actions which interfered with the running of a business; in the latter case, the prosecuting authorities prohibiting the privatisation of a hotel and thus effectively prevented the applicants from running it. Hence it also seems likely that closing this home down would be regarded as the determination of a “civil right” for the purpose of article 6(1).

44.  Also relevant may be the rights protected under article 1 of the First Protocol: “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 and by the general principles of international law.” Controls on the use of property are, however, allowed “in accordance with the general interest". This is a broader test than the more familiar qualifications in articles 8 to 11, which require that the interference be necessary and proportionate for the purpose of one of the legitimate aims listed in each article. Controlling the use of premises as a home for vulnerable adults is fairly obviously in the general interest. But that does not mean that it is in the general interest to close down a home and ruin someone’s business when, as the tribunal found, there was no good reason to do so; still less does it mean that it is in the general interest to descend upon a home with a number of ambulances and nurses and remove 33 elderly mentally infirm residents to other hospitals and nursing homes without any notice or opportunity to prepare for such a distressing and potentially damaging disruption to their lives.

45.  We cannot, of course, express any concluded opinion on these issues because they are not before us. Perhaps they will one day come before the European Court of Human Rights. They are not before us for two reasons. First, the remedy given to individuals under sections 6 and 7 of the 1998 Act does not apply to the acts of public authorities taking place before the 1998 Act came into force, as this did: see In re McKerr [2004] UKHL 12, [2004] 1 WLR 807. Furthermore, the interpretative duty in section 3(1) of the 1998 Act only arises in respect of acts of public authorities which would otherwise be unlawful under section 6. Once again, therefore, it does not arise if those acts took place before the 1998 Act came into force: see R (Hurst) v London Northern District Coroner [2007] UKHL 13, [2007] 2 AC 189.

46.  Secondly, the interpretative duty in section 3 is designed to march hand in hand with the power to make a declaration of incompatibility in section 4. Only if the problem cannot be cured by interpretation should a declaration be made: see Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557. Hence if section 3 is not available as an interpretative tool, the power to make a declaration of incompatibility under section 4 does not arise: see Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816. In any event, such a declaration does not affect the validity, continuing operation or enforcement of the provision in which it is given and is not binding on the parties to the case in which it is made: see section 4(6). Accordingly, Mr Ullstein QC, who appears for Mr and Mrs Jain, very properly took the view that it would be disproportionate to pursue an earlier claim for a declaration of incompatibility.

47.  Such a claim would in any event present some difficulties because it may be possible to operate section 30 in a compatible way. Authorities can and should refrain from making section 30 applications in cases which do not warrant them. Magistrates can and should refrain from making ex parte orders unless there is no alternative. As my noble and learned friend Lord Carswell has pointed out, it is likely to be a very rare case where an order has to be made without giving the owners an opportunity to state their case. I agree with everything which he has said upon that subject.

48.  With regret, therefore, I too would dismiss this appeal.

LORD CARSWELL

My Lords,

49.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Scott of Foscote. I agree entirely with what he has said and for the reasons which he has given I too would dismiss the appeal. I wish to add only a few observations.

50.  The decision in Martine v South East Kent Health Authority (1993) 20 BMLR 51, which Lord Scott has discussed in paras 32-4 of his opinion, is predicated upon the assumption that magistrates will carry out their safeguarding function in a satisfactory manner. In the present case that function was not carried out in a manner sufficient to prevent a serious miscarriage of justice. The House did not have any details of the hearing before the magistrate, and is not in a position to say whether he should have probed more carefully into the issues involved in granting such a draconian remedy as an ex parte cancellation of the appellants’ registration, or whether he was misled into his decision by unfounded representations made on behalf of the respondent health authority.