News Category 3
'Failure to Remove' Claims in the High Court: the Appeals in HXA v Surrey County Council and YXA v Wolverhampton City Council - Paul Stagg, 1 Chancery Lane
11/11/21. The trickle of court decisions seeking to apply the decision of the Supreme Court in N v Poole BC [2019] UKSC 25, [2020] AC 780 continues. On November 8th 2021, Stacey J handed down her long-awaited decision [2021] EWHC 2974 (QB) on the appeals from the decisions of Deputy Master Bagot QC in HXA v Surrey CC [2021] EWHC 250 (QB) and Master Dagnall in YXA v Wolverhampton CC [2021] EWHC 1444 (QB). She dismissed the claimants’ appeals, upholding the striking out of the claims in negligence brought by them against social services authorities.
I have analysed in previous articles the first instance decisions in HXA [link] and YXA [link]. The decision in YXA was handed down in the same week as the decision in Lambert J in DFX v Coventry CC [2021] EWHC 1382 (QB), [2021] PIQR P18 which is discussed in a further article written by Katie Ayres [link]. Together, the decisions of Lambert J and Stacey J address and reject a number of the arguments which have been advanced by claimants in favour of the imposition of duties of care in ‘failure to remove’ cases.
The Judgment
It will be recalled that both cases arose from neglect and abuse sustained by the claimants within the family home. In the case of HXA, she suffered from physical abuse and neglect from her mother, and sexual abuse chiefly perpetrated by her mother’s partner, Mr A. YXA suffered from physical and learning disabilities and was over-medicated and neglected by his parents.
After summarising the allegations made in the two cases at paras 6-12 of her judgment, Stacey J summarised the bases on which it was argued on appeal that duties of care arguably arose at para 13. In essence, the arguments for the claimants repeated those advanced below. The issues were accurately summarised as follows:
i) On the assumed facts in each case did the defendant local authority assume a responsibility towards the claimant so that a duty of care arguably arose as a result of the following particular behaviour by the defendants?
a) In HXA’s case when:
i) the defendant placed her name on the child protection register on 28 July 1994, or
ii) in November 1994 when the defendant decided to undertake a full assessment with a view to initiating care proceedings but failed to do so, or
iii) on 27 January 2000 when the defendant resolved to undertake keeping safe work with HXA, but failed to do so?
b) In YXA’s case when he was given intermittent accommodation provided by the local authority away from the family home under s.20 of the Act?
ii) Was it wrong to strike out the negligence claims on the basis that the law in this area is a developing area of law?
iii) Was it wrong to strike out the negligence claims on the basis that certain aspects of each claim would remain even if the negligence claims were struck out?
Stacey J then carried out an extensive review of the provisions of the Children Act 1989 relevant to the claim at paras 14-23 and then an analysis of the case law at paras 24-36, focusing mainly on Lambert J’s decision in DFX. She then summarised the judgments below at paras 40-53 and the parties’ submissions before her at paras 54-62.
At the outset of her conclusions, Stacey J adopted at para 63 the approach of the Court of Appeal in Kalma v African Minerals Ltd [2020] EWCA Civ 144 to determine whether the essence of the allegations made was one of act or omission. She said that it was “abundantly clear” that they fell into the latter category as “the harm was being done by the claimants’ families and Mr A”. She concluded:
The attempt to carve out positive acts from a case which is principally about a failure to confer a benefit is to fail to identify correctly the underlying complaint. as per the Court of Appeal in Kalma:
“merely because something can be presented as an act does not mean that what are, on a proper analysis, omissions can be, as the judge put it, “brought wholesale within the parameters of a duty of care”” [121]
Or to put it colloquially, to fail to see the wood for the trees.
She set out at para 65 a list of tasks which, it was clear from previous decisions, did not amount to the provision of services to a child which they could be expected to rely upon in a way which might create an assumption of responsibility:
“investigating and monitoring” a child’s position …. “taking on a task” …. exercising its general duty [under] s17 [of the Children Act] …. placing a child on the child protection register …. investigating under s47 [of the Children Act]
She said, importantly, that “something more” was required. So the placing of HXA on the child protection register did not amount to “something more”: para 66. Neither did a decision to undertake a full assessment and seek legal advice about care proceedings: para 67. As for the “keeping safe” work, as with the similar allegation in DFX, there was no suggestion in the Particulars of Claim that the claimant would have kept herself safe if that work had been carried out, and in any event the allegation was one of omission to carry out the work, rather than it being carried out incompetently: para 68. The scope of any duty relating to the keeping safe work could therefore only extend to doing the work competently.
As for YXA, the judge noted at para 69 that his position as a child who was receiving temporary and intermittent care under s20 of the 1989 Act was “entirely different” to that of a child in care for whom the local authority had parental responsibility. There was no criticism of the care that YXA received during those periods; instead, the complaint was of a failure to take care proceedings to remove him from the care of his parents. There was no “logical reason” why the provision of s20 accommodation made any difference: para 70. The decision in Barrett v Enfield LBC [2001] 2 AC 550 was readily distinguishable, because the claim there was based on alleged failings after the child entered the local authority’s care. ‘Wrongful removal’ cases such as D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558 were also readily distinguishable: paras 70-71.
Having decided that none of the formulations advanced in the two cases arguably gave rise to an assumption of responsibility, Stacey J went on to consider whether she should refrain from striking out the cases on the ground that the area of law was “developing”. She rejected that submission at para 72, stating that the cases were “so closely analogous to the recent Supreme Court judgments and now DFX” that it could not be described as a “developing” area of the law. She went on, however, to consider some of the cases discussed in my previous articles in which claimants had succeeded in showing that their claims should go forward. She rejected the decision of the St Helena Court of Appeal in A v Attorney-General of St Helena [2020] unreported, January 20th as wrong: para 73. She noted that Champion v Surrey CC [2020] unreported, June 26th was under appeal, and that it had been agreed at AA v CC [2020] unreported, September 22nd was distinguishable. Overall, she said at para 74:
…. the question of assumption of responsibility by a local authority so as to give rise to a duty of care to remove children from their families in child protection proceedings is not a developing, but a settled, area of law.
Stacey J summarised the position as follows at paras 75-76:
-
The Deputy Master and Master in both cases were correct to conclude that the claims were bound to fail for the reasons given in their careful judgments. The allegations were of an omission/failure to confer a benefit/not making things better and in neither case had the claimant asserted facts that could establish that the defendant local authority had assumed responsibility so as to give rise to a duty of care to take care proceedings. Since no duty of care had arisen, the claims in common law negligence were unwinnable. There was no arguable assumption of responsibility that could be found or inferred from either the nature of the statutory function or the manner of behaviour by the defendant in either claim to amount to an arguable case.
-
Even pre DFX, both judges were also correct in their analysis that neither case raised issues in a developing area of law so as to tend towards the exercise of the Court’s discretion not to strike out notwithstanding the inherent difficulties in the claims. Post DFX the position has become clearer still. The facts alleged fall within the established parameters established by precedent. The application of the principles established by Poole, Robinson and Michael as applied to temporary intermittent accommodation provided with the parents’ consent under s.20 does not amount to “something else” so as to amount to an assumption of responsibility to take care proceedings.
Finally, she stated that the decisions of the Deputy Master and Master to strike the negligence claims out notwithstanding that some parts of each claim were not attacked and would go forward were case management decisions and could not be impugned: para 77. The appeals were therefore dismissed.
The Implications
Combined with the decision in DFX, Stacey J’s decision creates a body of authority binding up to the level of the High Court which has three main effects. First, it cuts off any argument that action taken by local authorities by way of investigating a family’s position, providing services to try to relieve the family’s position or invoking child protection powers short of obtaining a care order, can be seen as positive acts rather than omissions for the purposes of the law of negligence. This is plainly correct; these cases are at root about the local authority’s failure to secure the removal of a child from a situation in which he or she is enduring abuse or neglect. They are cases of omission, or failing to make things better as it was put in Poole.
Secondly, the decisions make it clear that the decisions in Barrett and East Berkshire, frequently relied upon as analogous, are nothing of the kind. Barrett is, following Poole, to be seen as an example of a case in which an assumption of responsibility arises purely as a result of the nature of the service being provided to the claimant. As made clear by Stacey J, child protection functions are not such a service. The East Berkshire appeals concerned three cases not of omission, but of causing harm by removing children from the care of their parents with no basis in fact.
The third point is the rejection by Stacey J of the assertions that cases of this kind should nevertheless be allowed to go forward to trial on the ground that the law was developing. As she says, Poole, DFX and her judgment between them spell out clearly that an assumption of responsibility can only arise from some facts which fulfil the criteria for an assumption of responsibility on a factual basis. The law is, in that sense, settled.
It is suggested that the search for the “something more” which might justify imputing an assumption of responsibility on the facts in a ‘failure to remove’ case is likely to remain elusive. This should not be particularly surprising, since the concept was developed in the very different context of references being voluntarily given by a company’s bank to another company’s bank. To construct an arguable case of assumption of responsibility in this context will, it is suggested, require some unusual facts. For example, if a child was given an express promise by a social worker that action will be taken to remove them from an abusive situation in order to dissuade the child from running away from home, and then action was not taken, that would arguably give rise to a duty of care. But as the law stands, nothing short of that sort of promise or representation which is then acted upon, surplus to the mere involvement of social workers in a family, will suffice.
There remain, however, some arguments being advanced by claimants which have not yet been the subject of pronouncement at High Court level. In particular, it remains to be seen whether the courts will be able to find an arguable duty of care on the basis of the other exceptions identified in the Poole case: namely preventing others from protecting the claimant, failing to exercise control over the source of the danger, and the ‘status’ of the local authority: see para 76 of the Poole judgment. The first two of those were the subject of consideration by Deputy Master Bagot QC in para 35(ii) and (iii) of his judgment in HXA and by Master Dagnall at YXA at paras 86-87. Another argument is that the inaction of the local authorities “increased the danger” to a child. This was again considered and rejected at first instance in the two cases: HXA para 35(i); YXA paras 84-85, 100-101. However, the arguments were not repeated on appeal and were not addressed by Stacey J. Nor were they considered by Lambert J in DFX, having apparently been pleaded but not pursued at trial: see para 15 of her judgment.
Future Developments
The other exceptions to the general rule of non-liability for omissions are likely to be considered in the pending decision of the Court of Appeal from the decision of Master McCloud in Tindall v Chief Constable of the Thames Valley Police [2020] EWHC 837 (QB), [2021] RTR 6. The Court of Appeal heard argument over two days in October and judgment is awaited.
The appeal in Champion remains undecided by the High Court. On October 20th, Cotter J considered an application by the claimant for the appeal to be transferred direct to the Court of Appeal for consideration. He adjourned the matter pending the handing down of Stacey J’s judgment.
The adjourned strike-out application before Master McCloud in DEF v Kirklees MBC has now been listed for March 15th and 16th 2021, almost a year after the first day of the hearing. The claimant in that case, represented by the same team of counsel as are instructed in Champion, relies on a very wide range of arguments in favour of the imposition of a duty of care.
There is also a two-day summary disposal application in Armstrong v Worcestershire CC listed on November 17th and 18th 2021, in which the local authorities are also seeking summary judgment on the Human Rights Act claims brought by the claimant.
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Elgamal v Westminster City Council [2021] EWHC 2510 (QB) - A Decision Considering CPR 36.17 Where There Had Been Exaggeration But Not Fundamental Dishonesty - Nicholas Dobbs, Temple Garden Chambers
21/10/21. The judgment in Elgamal v Westminster City Council is likely to be of interest to practitioners for its discussion of the interpretation and application of the law relating to fundamental dishonesty (an update on that will follow shortly). The judgment is also of interest in so far as it addresses the costs consequences in circumstances where, although the claimant was successful at trial and had beaten their Part 36 offer, there were findings by the trial judge that there had been some exaggeration, though not such as to render a finding of fundamental dishonesty.
On appeal, the defendant contended that the judge had failed to properly address the question of whether it was unjust for them to be required to pay the claimant’s costs on an indemnity basis (having not responded to the claimant’s Part 36 offer). The defendant relied on CPR 36.17 which provides that the consequences there set out apply unless the court “considers it unjust to do so”.
The trial judge had made the following comments at paragraphs [17] and [18] of his judgment in respect of the costs consequences:
“17. I go back to the real issue in this case and that is, and I remind myself that I have got to take into account all the circumstances of the case and I have spelt out what the circumstances of the case are when I considered the issue in relation to costs generally and, in my judgment, those circumstances do not change between Part 44 and Part 36, they are the same. That is that this claimant faced...
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Children and contributory negligence: Khadija Alabady (a minor by her litigation friend Fatima Alabady v Muhammad Ali Akram [2021] EWHC 2467 (QB) - Rochelle Powell, Temple Garden Chambers & Rebecca Henshaw
The case concerned the trial of a preliminary issue to determine whether a 9-year-old Claimant was contributorily negligent, and if so, the level of any consequent apportionment.
The Claimant had been a pedestrian with her mother and cousins when, after crossing a busy road on a “red man”, she was struck by the Defendant’s vehicle. Her mother’s evidence was that as the group began to cross the road, no car was in sight. The group stopped when they saw the car, the Claimant continued.
The Defendant’s evidence was that he had seen the group but thought that they would stop before getting to his lane, having seen him approach. His evidence was also that he had thought they would not get to his lane before he passed them. He did not think he had braked until after the collision. The Defendant had been travelling at 43mph in a 30mph zone, with a collision speed of around 33mph.
Findings
HHJ Bird found that the decision to cross the road was very unlikely to be the Claimant’s own, and that she was distracted. She carried on for only 1.32 seconds before the collision. She did not, as had been argued by the Defendant, move out deliberately.
The law relating to child claimants was then reviewed. Following Ellis v Kelly [2018] 4 WLR 124, HHJ Bird held that there was no reason why the Claimant could not be judged by the standard of other children her age. It was open to the court to find that she had been negligent. However, in assessing contributory negligence the Court had to consider what was just and equitable in the circumstances. This involved, first, a consideration of whether the damage caused was partly the fault of the claimant and, second, the appropriate apportionment in the circumstances. Causation is the decisive factor in determining the first question, which involves no direct comparison of fault. The second question was to be determined by reference to the relative causative potency and moral blameworthiness of each party.
Whilst noting that cases are fact specific, the judge found the comments of Lord Denning MR in Gough v Thorne [1966] 1 W.L.R. 1387 instructive [29]:
“A judge should only find a child guilty of contributory negligence if he or she is...
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FREE CHAPTER from 'A Practical Guide to Personal Injury Fixed Costs in Portal and Ex-Portal Cases' by Alexander Mellis
Fixed costs in personal injury do not always provide the clarity that may be hoped for. Even if your case is a straightforward one, this book will ensure you correctly calculate the fixed costs payable in claims that start life under the various protocols and portals for road traffic accidents, employers and public liability claims and travel sickness claims, whether they remain in the portal or exit it.
This book brings together in one place important rules scattered across the Civil Procedure Rules from the Protocols, Part 36, Part 44 and Part 45 Sections III and IIIA as well as supporting case law.
The book will help you know if a point has been determined or only been dealt with in the County Court. As well as helping with which points remain arguable, the book will also help identify the arguments that may be deployed for each side, pending any binding authority.
INTRODUCTION
Fixed costs in personal injury are supposed to be straight forward, avoid the need for time spent on assessment and control the level of costs payable by Defendants. Whilst it usually secures those aims, there are gaps, lacunas, nuances and specific interpretations which any practitioner – be it solicitor, CILEX, paralegal, counsel or, dare I say, judge – should know.
To fully understand fixed costs, the below comments from the Court of Appeal should always be borne in mind:
“31. The starting point is that the plain object and intent of the fixed costs regime in relation to claims of this kind is that, from the moment of entry into the Portal pursuant to the EL/PL Protocol (and, for that matter, the RTA Protocol as well) recovery of the costs of pursuing or defending that claim at all subsequent stages is intended to be limited to the fixed rates of recoverable costs, subject only to a very small category of clearly stated exceptions. To recognise implied exceptions in relation to such claim-related activity and expenditure would be destructive of the clear purpose of the fixed costs regime, which is to pursue the elusive objective of proportionality in the conduct of the small or relatively modest types of claim to which that regime currently applies.
…
“41 . The fixed costs regime inevitably contains swings and roundabouts, and lawyers who assist claimants by participating in it are accustomed to taking the rough with the smooth, in pursuing legal business which is profitable overall ” Sharp v Leeds City Council 1 per Lord Briggs (as he then was).
“30. The starting point is that fixed costs and assessed costs are conceptually different. Fixed costs are awarded whether or not they were incurred, and whether or not they represent reasonable or proportionate compensation for the effort actually expended. On the other hand, assessed costs reflect the work actually done. The court examines whether the costs were incurred, and then asks whether they were incurred reasonably and (on the standard basis) proportionately.” Broadhurst v Tan 2 per Lord Dyson MR.
The costs are not designed to be fair in individual cases. Arguably unfair results in an individual case, against either a defendant or a claimant, are not reasons to interpret the rules differently. As such it is undoubtedly important not to miss out on recovering the costs a claimant is entitled to when they are available. Similarly, defendants will want to ensure that the aim of reducing costs payable is properly met. Understanding the ‘swings and roundabouts’ nature of the costs in the areas covered by this book is important to contextualise some of the judicial decisions and results of the rules, which on occasion are most certainly the ‘rough’ rather than the ‘smooth’.
Scope
This book is aimed at everyone who deals with costs in cases which start life in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”), the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the EL/PL Protocol”) and the Pre-Action Protocol for Resolution of Package Travel Claims (“the Travel Sickness Protocol”). The main focus of the book is those claims that exit those Protocols, for whatever reason, together with claims under the Travel Sickness Protocol. For the RTA and EL/PL Protocols it also covers those claims where liability is admitted and that therefore stay in the Portals and either settle or go on to be determined at a Stage 3 Hearing.
A brief aside on some of the nomenclature used. The ‘Portal’ refers to the programme or process that the claims go through, the ‘Protocol’ to the rules that govern the relevant Portal.
The scope of each of these Protocols is only briefly covered. That it is included at all is primarily because it can and does sometimes arise as an issue throughout the lifetime of proceedings, even right up until the end. In that way, whilst it is generally taken as a given that the case you are dealing with falls within the fixed costs covered in this book, it would be remiss not to alert readers to the occasional issues that can arise. It is not, however, intended as a comprehensive guide to the scope of the Protocols.
The one obvious distinction that needs to be considered at the outset is that the book, or at least this first edition, does not cover the newly introduced Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (“the RTA Small Claims Protocol”).
More fundamentally, for claims involving road traffic accidents after 31 May 2021 that involve personal injury damages up to £5,000 – and all whiplash injuries lasting below 2 years fall under that level due to the introduction of the Whiplash Injury Regulations 2021 – they are unlikely to fall within the scope of this book.
The RTA Small Claims Protocol is supposed to be accessible to litigants in person as well as lawyers and so it is hoped will not need to be included in a book such as this one. Time will tell if that hope proves well founded.
Some, but not all, of the rules are re-produced in full at the relevant sections of this book. Whilst familiarity with their wording and meaning is vital to accurately deploying the understanding of the rules and issues that arise from them, merely reproducing the White Book, rules or protocols would be of little benefit.
Qualified One-Way Costs Shifting (“QOWCS”)
A further context that needs to be remembered throughout dealing with the issues covered by this book is Qualified One-Way Costs Shifting. It was introduced in 2013 as part of the package of reforms to control costs but maintain access to justice in personal injury claims. The rules are to be found in Part 44 rules 44.13 to 44.17. For claims not subject to a CFA before 1 April 2013, an unsuccessful claimant in a claim for personal injuries, under the Fatal Accidents Act 1976 or arising out of death or personal injury that survives for the benefit of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 does not have to pay the successful defendant’s costs. There are exceptions to that, most importantly if the claim is found to be fundamentally dishonest or struck out for the reasons set out at r44.15. Importantly it does not include being struck out for a failure to comply with a rule or practice direction. A further exception is where the claim is made for the financial benefit of either somebody else or includes a claim other than for personal injury, so called “mixed” claims.
A further exception is in applications for Pre-Action disclosure, per r44.13(1).
Any costs order can also be enforced where a claimant does recover damages, such as a costs award made at an interim stage or where a defendant beats their own Part 36 offer. Recoverability in those circumstances is limited to the level of damages awarded.
What is important to understand is that QOWCS does not alter the principle of what costs order should be made, only the enforceability of it.
The law described in this book was believed to be accurate on 20 July 2021.
Alexander Mellis
August 2021
MORE INFORMATION / PURCHASE THE BOOK ONLINE
1 [2017] 4 WLR 98
2 [2016] 1 WLR 1928
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Child pedestrians and contributory negligence - David Knifton QC, Exchange Chambers
23/09/21. In the latest contribution to the issue of child contributory negligence, HHJ Bird (sitting as a Judge of the High Court) concluded that a 9 year-old girl, struck by a car whilst crossing a carriageway at night, was not guilty of contributory negligence. The case of Alabady v Akram [2021] EWHC 2467 (QB) raises a number of important issues in this area of the law.
The Facts
At 10.35pm on 16.8.18, Khadija Alabady (aged 9 years and 2 months) was crossing Princess Road, a major dual carriageway with 3 lanes of traffic in each direction, leading south from Manchester city centre, from its east side to its west side. She was with her mother, an adult cousin and 2 other cousins aged 11 and 9. Although they used a light controlled crossing, they began to cross when the “red man” light was showing against them. Khadija was slightly ahead and to the right of the group. The Defendant’s car, travelling at 43mph in a 30mph limit, was approaching from their right, about 75m away. The rest of the group apparently spotted the car and stopped about 3.8m along the crossing. Khadija, who was momentarily distracted, continued to cross, and was struck by the car when she was 5.8m (a little over half-way) across the carriageway. The Defendant’s evidence was that he had seen the group crossing, and assumed that they would stop before reaching his lane.
Primary liability was admitted, but a trial of contributory negligence was heard as a preliminary issue. No live evidence was called, the incident having been captured on CCTV, footage from which was analysed and formed the subject of an agreed report from accident reconstruction experts. They concluded that:
· If Khadija had looked to her right as she started to cross, she would have had a clear and uninterrupted view of the Defendant’s car, some 75m away.
· Had the Defendant been travelling at 30mph when she began to cross, Khadija would have completed her crossing without a collision.
· Had the Defendant performed an emergency stop when he saw the group, he would have been able to avoid the collision if travelling at 30mph, and may have been able to do so at 43mph.
· Had Khadija obeyed the “red man” signal, or stayed with the group, the collision would have been avoided.
The Outcome
The judge found that:
1. The standard of care to be expected of a child was to be judged by what was reasonably expected of a child of her age, intelligence and experience. There was no bar by reason of her age to making a finding of contributory negligence.
2. The issue of contributory negligence involves firstly a determination of whether the damage has been caused partly by the fault of the claimant and partly by the fault of others. The first question involves no direct comparison of fault. If the conclusion is that damage was so caused, the second question is how should the damage be apportioned, having regard to the relative causative potency and blameworthiness of each party’s actions.
3. In gauging whether a child is at fault, the court must take account of...
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