News Category 2
Failure to Remove Claims and Section 20 Accommodation: YXA v Wolverhampton City Council - Paul Stagg, 1 Chancery Lane
02/08/21. Since the beginning of the year, three decisions have been handed down in favour of defendants in relation to how the decision in N v Poole BC [2019] UKSC 25, [2020] AC 780 affects claims in negligence against social services. The decision of Deputy Master Bagot QC in HXA v Surrey CC [2021] EWHC 250 (QB) was the first, and was discussed in an article that I wrote and circulated in February when the decision was handed down. Lambert J handed down her long-awaited judgment in DFX v Coventry CC [2021] EWHC 1382 (QB), in which she dismissed claims by four siblings following a trial.
A common feature of ‘failure to remove’ claims is that claimants have been accommodated by the local authority at some point in the history under section 20 of the Children Act 1989. Section 20 set out important duties and powers in relation to the accommodation of children for whom the local authority does not have parental responsibility under a care order. In brief:
— Under sub-section (1), the local authority must accommodate a child in need “within their area” who needs accommodation and who has no person with parental responsibility for him, has been lost or abandoned, or whose carer has “been prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care”.
— Sub-section (3) requires the provision of accommodation to a child in need over the age of 16 whose welfare “is likely to be seriously prejudiced” if accommodation is not provided.
— Sub-section (4) provides a power to provide accommodation for a child within their area “if they consider that to do so would safeguard or promote the child’s welfare”.
Between them, these provisions result in the provision of accommodation to children in a wide variety of circumstances. On one end of the scale, children may be accommodated where there is no concern about a parent’s ability to care for them but there is a temporary family emergency, such as where the parent is hospitalised and there is no family member or friend able to care for the child temporarily. Section 20 is also the ultimate source of the power to provide regular respite care for parents who need a break from caring for their children (though see also, in the case of children with disabilities, Schedule 2 paragraph 6). In many other cases, section 20 has been used to care for children on a medium-term or even long-term basis by agreement with their parents. The courts have frequently been critical of the use of section 20 by local authorities in this way; the expectation is that they should instead bring the case before the court for consideration of whether a care order should be granted: see eg In re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2017] AC 167, paras 157-171.
The crucial distinction between children accommodated under section 20 and those accommodated under a care order is where parental responsibility rests. When a child is accommodated under section 20, it is made clear by sub-sections (7) and (8) that the parent, or other individual with parental responsibility, can object to the continuation of the care at any time. By contrast, a care order confers parental responsibility on the local authority, and enables it to restrict the exercise by parents of their parental responsibility: section 33(3).
In ‘failure to remove’ cases where a child has been accommodated under section 20, it is frequently argued that the accommodation of the child gives rise to a duty of care by way of assumption of responsibility, even if other steps taken by the local authority do not do so. The decided cases to date have not had to address this question, which has been considered for the first time by Master Dagnall in his judgment handed down on Wednesday of this week in YXA v Wolverhampton CC [2021] EWHC 1444 (QB).
The claimant is a severely disabled young man who suffered from epilepsy and autistic spectrum disorder. He was born in 2001 and until 2007, lived in the area of the London Borough of Southwark, which was originally the first defendant to his claim but against whom proceedings were discontinued. In 2007, the family moved to Wolverhampton. An early assessment was carried out after information was received from Southwark. Concerns were expressed by a paediatrician about over-medication by the parents; she thought that the claimant should be received into care. From April 2008, the council provided regular respite care for one night every two weeks and a weekend every two months. There were concerns about the use of physical chastisement and about the use by the parents of a known sexual offender to babysit for him. In December 2009, the claimant was received into the care of the council on a full-time basis by agreement with the parents. A care order was made in the following year.
Master Dagnall recorded at para 24 of his judgment the two ways in which the case was put for the claimant. First, reliance was placed on the general involvement of the local authority for the family by way of its child protection functions. Secondly, it was said that a duty of care arose as a result of the provision of accommodation to the claimant and that he should not have been returned to the care of his parents at the conclusion of each period of accommodation.
After a detailed review of the case law at paras 27-69 and reviewing the competing submissions of Mr Justin Levinson for the claimant at paras 70-71 and myself for the defendant at para 72, the Master set out a useful summary of the common ground between the parties.
At para 75, he rejected the claimant’s submission that the decision in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558 had been approved specifically by the Supreme Court in N v Poole. This is an assertion frequently made in the ‘templates’ which form the basis of many of the Particulars of Claim produced by claimants’ representatives in this area since the decision in N v Poole. As the Master said, the assertion is flatly contrary to what N v Poole itself decided.
At para 76, he stated that Barrett v Enfield LBC [2001] 2 AC 550 was not authority for any wider proposition than that a duty of care arose by way of assumption of responsibility on the making of a care order. In this case, the parents had retained parental responsibility.
In para 78, he stated that he did not accept that the fact that a child was “dependant” on the local authority was to be equated with factual reliance for the purposes of the creation of an assumption of responsibility.
Considering the submissions based on the general involvement of the local authority, the Master concluded at para 82 that there was nothing to distinguish this case from N v Poole. He condemned the reasoning of HHJ Roberts in Champion v Surrey CC [2020] unreported, June 26th as “unsatisfactory” and approved the decision in HXA. In particular, he adopted Deputy Master Bagot QC’s rejection of the arguments that the council had increased the risk to the claimant, had failed to control wrongdoers, and had prevented others from protecting the claimant: paras 83-88 and 100-101.
He then turned to consider whether the provision of respite care made a difference. It was noted that some duty of care was probably owed in relation to the provision of the care to the claimant, including the mechanics of the return such as ensuring that he was safely returned home: para 90. In para 92, he analysed the claimant’s argument as based on two alternative propositions:
— A duty arose to consider care proceedings when respite care was provided.
— A duty arose to consider whether the child should be returned to the parents at the end of the relevant period.
At paras 93-95, he rejected the first proposition. The provision of accommodation did not alter the fact that the way in which the case was being put involved a failure to confer a benefit. He gave detailed reasons for this and concluded that the fact that there was a statutory duty to return the child on demand to the parents made the suggested duty inconsistent with the statutory scheme. The wording of the legislation was not sufficient to give rise to a duty where none would otherwise exist: para 97.
In relation to the second way of putting the case, he considered the analogy of returning a child to a burning building or to a parent who was obviously an immediate danger to the child. Those dramatic examples were not alleged to be present in this case. It could not be argued that the council ‘created’ the danger by returning the child to its parents. All that it was doing was returning the child, in accordance with the legislation, to its parents as it was required to do: paras 98-99.
Finally, he considered that it was appropriate to strike out the common law claim even though there was a parallel claim under the Human Rights Act 1998: para 103.
He concluded, therefore, that the claim should be struck out: para 104.
The whole of this thoughtful and lengthy judgment repays careful reading. It is an important contribution to the jurisprudence in this field. It remains to be seen whether the claimant will seek to appeal against the Master’s decision. The appeal in HXA is currently listed for determination on July 7th and it may be possible to list the two cases together. It is understood that an appeal is unlikely in DXF, so the strike-out cases offer the highest probability of further decisions from the High Court in the near future.
The full judgment is available here
Image cc flickr.com/photos/ell-r-brown/6281253172
The fight against section 57 fundamental dishonesty: Ed Ford (aka Edward Leonard Batey) v Lilachall Limited - Cristina Parla, Roythornes Solicitors
30/07/21. I recently acted for a client in connection with his personal injury claim which arose as a result of a slipping accident on private property.
The facts of the case are relatively straightforward, but the approach adopted by the defendant caused significant delays. The claim took over 5 years to resolve and had to go before the court for determination on liability and quantum.
Background
The claimant lived in an apartment on the defendant’s premises. Even though the apartment was outright owned by the claimant, the Estate was managed privately by the defendant. Residents (including the claimant) paid a monthly service charge which included funding for repairs and general maintenance of the grounds and communal areas.
The facts
On the evening of 01 January 2015, the claimant went outside to take some rubbish to the communal bins. It was a cold dark night and when he reached the top of a sloping pathway on the Estate, he slipped and fell on moss covered ground.
The claimant took photographs of the pathway shortly after the accident occurred. He also took photographs several months apart to show that no steps had been taken to clear the path of moss which had worsened over time.
As a result of the accident the claimant suffered a nasty ligamentous injury which affected daily living and prevented him from training at the gym. The claimant required care and assistance from his wife, and using his own knowledge in health and fitness, he was able to do physiotherapy exercises at home.
The claimant brought a personal injury claim under the relevant provisions of the Occupiers’ Liability Act 1957. The said Act imposes a duty of care to ensure that the occupier must:
“take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."
No stone was left unturned and the defendant denied liability for the claimant’s accident and pursued a section 57 defence.
What is section 57?
Section 57 of the Criminal Justice and Courts Act 2015 enables the court to strike-out any personal injury claim if the claimant is found to be fundamentally dishonest and the dishonesty goes to the heart of the claim.
In this case, the defendant investigated and challenged the claimant on every point which started from his Claim Notification Form right through to his identity, the circumstances of the accident and the injuries suffered. There were a few explainable inconsistencies, but the defendant was determined to pursue the claimant.
Documents considered in the process of the claim included medical records, gym records, identity related documents and previous antecedents.
The claimant had a past criminal conviction for perverting the course of justice in an unrelated matter and the defendant sought to rely upon this as a means of attempting to show that he was not of credible character. The defendant pursued a heavy line of attack and threatened committal proceedings should the court find that the claimant had been fundamentally dishonest.
Why is section 57 significant?
There has been a flurry of fundamental dishonesty defences since the commencement of section 57 of the Criminal Justice and Courts Act 2015. It is common theory between claimant personal injury solicitors that defendants are using section 57 as a way and means of recovering their costs.
If a court were to find that a claimant had been fundamentally dishonest, the claim can be struck out in its entirety and the claimant ordered to pay costs. This means that the claimant would lose the benefit of Qualified One-Way Costs Shifting (QOCS) which would normally prevent a defendant from being able to recover their costs of successfully defending an action against them.
Solution and outcome
I prepared the claimant’s case against the defendant which was heard at the County Court in Cambridge on 03 March 2021. The claimant was represented by Cassandra Williams of Ropewalk Chambers.
I am pleased to report that the claimant was successful at trial and the court did not make a finding of fundamental dishonesty. This was a huge victory for the claimant, especially as the extent of the defendant’s conduct made him feel on trial for the accident - not the other way round.
The court accepted that the claimant had slipped on mossy ground and commented that it is logical the defendant’s duty should extend to clearing moss which can be particularly hazardous in winter when a pathway is wet. This duty engages section 2(2) of the Occupiers’ Liability Act 1957 and in the absence of any adequate system which deals with inspection and maintenance of the said pathway, the court found that there had been a breach of the said Act.
In respect of the allegations of fundamental dishonesty, the court commented that the defendant was right to put points in issue as it goes to the claimant’s character but were satisfied that the claimant was credible and reliable. The Judge specifically commented that just because the claimant has been previously dishonest in one context does not mean that they are in another.
Costs
Good news on costs - the court found that whilst the defendant was right to explore and challenge the claimant’s case, the approach taken had been “heavy-handed”, particularly the threat of committal proceedings.
The defendant’s heavy-handed approach was not reasonable or proportionate to the value of the personal injury claim. Additionally, the threat of committal proceedings was enough to overcome and defeat the defendant on the exceptional circumstances argument.
The defendant was therefore ordered to pay the claimant’s costs on an indemnity basis.
Finally…
This case clearly demonstrates that whilst any allegations of fundamental dishonesty must be taken seriously, it is important to remember that the dishonesty must go to the heart of the claim and a previous criminal conviction is wholly irrelevant.
Further, there has previously been little guidance on what might constitute as ‘exceptional circumstances’ in order to escape the fixed costs regime, but a lesson from this case is that is it possible to beat the exceptional circumstances argument, if you can show that the defendant’s tactics were heavy-handed and disproportionate to the value of the claim.
This article was originally published by Roythornes Solicitors at https://www.roythorne.co.uk.
Image: cc flickr.com/photos/automotocycle/4364302074
Balls v Reeve & Thurlow: limitation and causation: Asbestosis - Jim Hester, Parklane Plowden Chambers
27/07/21. In this Asbestosis case, both limitation and causation were in dispute. The Judgment appears in full at href="https://jimhester.me/library/asbestos-library/">Balls v Reeve and Thurlow [2021] EWHC 751 (QB). The claim was heard by David Pittaway QC, sitting as a Deputy Judge of the High Court.
In this Asbestosis claim the Claimant alleged his injury was due to exposure to asbestos whilst employed by the defendant company S. T. Thurlow between 1954 and 1983.
The Claimant was a carpenter who has said he regularly came into contact with asbestos in the construction of houses, bungalows and farm buildings.
The claim specifically related to the period between 1979 and 1984, the only period where insurance cover had been identified. There was also a claim for provisional damages.
The issues for the case were in relation to limitation and medical causation.
The Claimant was aware that he was suffering from a respiratory condition as far back as the 1990. The Defendant relied on an admission by the Claimant that he may have spoken to the late Mr Thurlow (who died in 2015) at a funeral in 2004. In that conversation the Claimant said that he was suffering from breathing problems.
Mr Thurlow’s son, daughter and son-in-law all said that Mr Thurlow had later told them that the Claimant was suffering ‘from asbestos or asbestosis’.
There was no evidence from an occupational hygienist as to the degree of exposure to asbestos for the Claimant.
However, the Claimant’s medical expert Professor Maskell, a consultant chest physician, noted the X-ray showing the formation of pleural plaques and pulmonary fibrosis, combined with the work history given by the Claimant. The expert considered that the Claimant was extensively exposed to asbestos between 1961 and 1983. He considered that such exposure was likely to meet the Helsinki criteria for the purposes of diagnosing asbestosis.
However, the expert’s report set out the caveat that it ‘would obviously be for an occupational hygienist to confirm’ the degree of exposure.
The Claimant’s evidence as to exposure of asbestos was solely in relation to his building work. This included sawing asbestos and asbestolux for the use in soffits in roofs of bungalows. The Claimant would also pull down old roofs made of corrugated asbestos sheets. He used a hammer to smash up old asbestos sheets. New sheets were also then installed.
Such sheets were cut to size using a hand saw. They were then drilled to secure into position generating large amounts of asbestos dust. The Claimant said that he was repeatedly cutting, drilling and handling asbestos throughout constructions. He wore a boiler suit which was covered with asbestos dust at the end of the working day.
The Judge found that the Claimant did not have actual knowledge of significant injury attributable to asbestos until diagnosed with asbestosis in August 2017.
Although the Claimant accepted that he had suffered from respiratory problems for some years, he personally consider that they were not sufficiently serious to bring them to the attention of the GP or doctors until seeking assistance in early 2017.
There have been a letter from an appointment in 2013 from hospital when asbestos was mentioned. Subsequent radiology suggested that the radiology showed with pulmonary fibrosis which was consistent with asbestos exposure. However, the Claimant said that he had not regarded the reference there to exposure to asbestos as being a diagnosis of asbestosis. The Judge accepted that the asbestosis was an insidious progressive disease. He found that it did not manifest itself until late 2016, after which he was promptly diagnosed.
As to constructive knowledge the Judge again relied heavily on the fact that asbestosis was not diagnosed until August 2017.
The Judge accepted a distinction between an X-ray showing signs of asbestos exposure and asbestosis. Signs of asbestos exposure are capable of being homeless, (as is usually the case with pleural plaques). However, asbestosis is clearly a development of an asbestos related disease.
The Judge also noted that the Claimant had been referred to the hospital in 2013 because of weight loss and not for breathing complaints.
The Judge cautioned against considering the evidence given at the funeral, which was second-hand from the Mr Thurlow’s relatives. This may have been interpretation of what Mr Thurlow made of the conversation and not what the conversation actually comprised.
The Judge said that if he was wrong in relation to section 14, then he would have allowed the claim to proceed under section 33 in any case. The Judge found that there was no serious prejudice to the Defendants. The Judge considered that the evidence would not have been very different that that presently available even if the Claimant had knowledge by, say, 2004. The evidence of the general nature of the Claimant’s working pattern of work would have been broadly the same. If the date of knowledge was 2013 and the action commenced within three years then Mr Thurlow would not have been alive and therefore not been able to give any further evidence for the Defendants.
The Judge was satisfied there was a breach of duty. The Claimant was required to work with asbestos without protection being provided during the period.
As to causation, the Judge accepted the evidence from the medical expert as to the Claimant‘s asbestos exposure probably meeting the Helsinki criteria. The Judge found that this case was one that was not necessary to obtain expert evidence from an occupational hygienist. The combination of Professor Maskell’s evidence taken together with the Claimant’s evidence was sufficient to prove on the balance of probabilities that moderate to severe exposure for a period of 30 years was consistent with the Helsinki criteria.
Apportionment and quantum were already agreed between the parties.
Limitation always falls on the interpretation of the facts of an individual case.
This is perhaps an unusual case in that there was no expert occupational hygienist evidence. The Defendant had argued that such evidence was required. However, the Helsinki key criteria were set out by the medical expert to require a minimum of moderate exposure to asbestos for 5 – 10 years. On the facts of this case, there was exposure of that degree for 30 years. Therefore, it appears that the Judge was confident the level had been reached in this case.
This article was originally published at https://jimhester.me
Image ©iStockphoto.com/stozka
Smith v The Royal Bank of Scotland [2021] EWCA Civ 977 - Harry Peto, Temple Garden Chambers
15/07/21. The Defendant sought permission to appeal in a second appeal in relation to a PPI case. The case had been allocated to the small claims track. Permission to appeal was granted, but subject to a condition that the Defendant pay the Claimant’s costs of the appeal. This condition was on the ground that the Claimant was an individual with a small claim who was defending a second appeal, whereas the Defendant was a large corporation. The Defendant applied to set aside that condition.
Defendant’s Successful Application
The Court can only vary the order if there is a compelling reason to do so: CPR 52.18(2). If a condition was imposed which the Court had no power to impose, that would be a compelling reason to set aside the condition. CPR 27.14(2) provides that the court may not award costs in a case allocated to the small claims track (with some exceptions not relevant here). In Akhtar v Boland [2014] EWCA Civ 943, it was held that the wording of CPR 27.14(2) is clear and extends to the costs of an appeal.
While it is common for parties with large resources to be granted permission to appeal on the condition that they pay the opposing party’s costs regardless of the appeal’s outcome, appeals from cases heard on the small claims track are an exception. There are situations in which the Court can impose conditions on a party’s continuing participation in a case which could not be the subject of a direct order, but those situations do not involve a Court overriding an express provision of the CPR.
Following Canada Square Operations Ltd v Potter [2021] EWCA Civ 339, it is not a proper use of the general power to attach conditions to sidestep a rule expressly prohibiting orders for costs. It was also too late for an application for re-allocation to be made, which could have been made in the County Court. Appeals do not proceed on the small claims track, fast track or multi-track, as these are County Court concepts.
Image ©iStockphoto.com/BrianAJackson
R (The Good Law Project) v The Secretary of State for Health and Social Care [2021] EWHC 1782 (TCC) - Harry Peto, Temple Garden Chambers
13/07/21. This was a claim for judicial review in which the Claimant sought to challenge the lawfulness of the Defendant’s decisions to award contracts for the supply of personal protective equipment to the Interested Party, Pharmaceuticals Direct Ltd.
The Claimant had served an unsealed copy of the claim form to the ‘new proceedings’ email address of the Government Legal Department (“GLD”). A sealed claim form was then sent to three named solicitors from the GLD, one of whom confirmed receipt. The sealed claim form was not, however, sent to the ‘new proceedings’ address (within 7 days of issue by the Court, as required).
Service of the Claim Form
The Claimant applied for an order under CPR 6.15 that would render valid any late service of its claim form, alternatively for an extension of time for service. The Defendant applied for an order that the claim form be set aside for want of jurisdiction by reason of the late service of the claim form.
Decision
The Judge refused the Claimant’s application for an order under CPR 6.15, granting the Defendant’s application to set aside the claim form. The Claimant had failed to serve a sealed claim form at the designated email address in time. The fact that the Defendant was aware of the contents of the claim form within time was not relevant, as the Defendant would suffer prejudice in being deprived of a limitation defence. Further, the Claimant had not established a good reason why alternative service of the claim form ought to be authorised.
The Claimant’s application for an extension of time was also refused: CPR 7.6 did not apply to service of a claim form in judicial review proceedings. It was inappropriate to extend time in this instance following the Denton principles. The failure to effect valid service was serious and significant, as despite being only one day this was against a benchmark of 7 days. The reason for the failure was a careless mistake. Extending time would deprive the Defendant of any accrued limitation defence. It was relevant that there was a very tight deadline to challenge the lawfulness of public procurement contracts.
Image ©iStockphoto.com/
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