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Striking out claims in evolving areas of the law: HXA v Surrey CC [2022] EWCA Civ 1196 - Anisa Kassamali, Temple Garden Chambers

15/09/22. The Court of Appeal considered the circumstances in which local authorities owe a duty of care to children to whom they provide child protection services. In so doing, it commented upon the proper exercise of a Court’s power to strike out a claim pursuant to CPR 3.4.


The two appellants had separately been subjected to abuse and neglect as children. They each brought proceedings in negligence against their local authorities. They both claimed that the local authorities had assumed responsibility for their welfare and so owed them a common law duty of care.

The claims were struck out on the basis that, on the facts of each case, the local authorities could not be said to have assumed responsibility and so it was not arguable that they owed the appellants a duty of care. The decisions to strike out the claims were appealed to the High Court, where they were upheld by Stacey J. However, the Court of Appeal allowed the appellants’ appeal, concluding that it had been “plainly wrong” [105] to strike out the claims.

Court of Appeal decision

Much of Baker LJ’s judgment was concerned with the circumstances in which a local authority owes a duty of care to a child to whom it provides child protection services. He considered that this was a question which could only be answered definitively “on a case by case basis by reference to the specific facts of each case” [92] and that such a duty might arise in both of the appellants’ circumstances.

However, the Court of Appeal was not being asked to decide whether the appellants would ultimately succeed in establishing that the local authorities owed them a duty of care. Baker J cited Lord Reed’s observation in the Supreme Court decision of N v Poole Borough Council (AIRE Centre and others intervening) [2019] UKSC 25 that “the existence of an assumption of responsibility can be highly dependent on the facts of a particular case” and “where there appears to be a real possibility that such a case might be made out, a court will not decide otherwise on a strike out application” [99].

In reaching its decision, Baker LJ emphasised the uncertainty generated by the fact that the case law was still evolving in this area. He observed at [105]-[106]:

“105. To sum up, this is still an evolving area of the law in which it will only be through careful and incremental development of principles through decisions reached after full trials on the evidence that it will become clear where precisely the line is to be drawn between those cases where there has been an assumption of responsibility and those where there has not…

106. In due course, as a body of case law emerges, it will become easier at the outset of proceedings to identify the circumstances in which an assumption of responsibility can exist so as to give rise to a duty of care. At that point, there will be greater scope for striking out claims which on any view full (sic) short of establishing a common law duty of care. But at this relatively early stage in the development of the law after the Poole case, striking out these claims would in my view be a wrong use of the power under CPR 3.4.”

Concluding comments

The Court of Appeal’s decision emphasises the high threshold required before a Court will strike out a claim. This is particularly so where the claim relates to evolving areas of the law where the fundamental principles are not yet fully established.

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