B v Reading Borough Council & Ors [2007] EWCA Civ 1313

[2007] EWCA Civ 1313Case No A2/2007/0108
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
The Honourable Mr Justice Keith
HQO2X01802
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/12/2007
Before
SIR ANTHONY CLARKE MRLORD JUSTICE MAYLADY JUSTICE HALLETT
Between
BClaimant/
Mr Andrew Miller (instructed by Messrs Watmores) for First & Second Defendants/AppellantsMr Nick Bowen (instructed by Messrs Gabb & Co) for Claimant/RespondentHearing Hearing date: 20 November 2007
JudgmentSir Anthony Clarke MR:This is the judgment of the court.Introduction
[1]This appeal is part of complex and no doubt extremely expensive litigation which arises out of events which occurred many years ago. This is the second time that an interlocutory appeal has reached this court. On this occasion it is an appeal, brought with the permission of Sedley LJ, against an order made by Keith J (‘the judge’) on 13 December 2006 refusing to strike out part of B’s claim for damages for alleged breaches of an alleged direct duty of care owed by the defendant local authorities to B. The judge had previously struck out earlier parts of B’s claim for damages, in so far as they were based on the alleged vicarious liability of the local authorities for alleged breaches of duty said to be owed by a social worker (or social workers) to B. That earlier order was made pursuant to a judgment finally handed down on 12 October 2006.

B’s claims

[2]There were initially two claimants in this action. The first was L and the second was B, who is L’s father. The claimants alleged misfeasance in public office, conspiracy to injure and negligence both against the first and second defendant local authorities and against the police. The second defendant is the successor in title to the first defendant and the first defendant is the successor in title to the relevant local authority at the time, which was Berkshire County Council (‘Berkshire’), which no longer exists. In these circumstances it is convenient to describe the first and second defendants and Berkshire together as ‘the local authority’. The claims arise out of investigations carried out by local authority social workers and the police into allegations of sexual abuse said to have been inflicted on L by B. The allegations had been made by L’s mother S when L was very young.[3]L was born in 1987. Her parents were not married and parted in June 1988, whereafter B saw L from time to time, but in early 1990 S made allegations of sexual abuse against B. As a result L was interviewed twice by a social worker, Ms Sandra Sullivan, and a police officer, WPC Grey. The first interview was at L’s home. At [4] to [7] of his judgment of 12 October 2006, which we will call ‘the first judgment’, the judge described the assumed facts in part as follows, beginning with a reference to the first interview:
“4. The interview was not video-recorded, nor were contemporaneous notes made of it by Ms Sullivan or WPC Grey. But L said things which made them think that B had sexually abused her, even though they were subsequently to accept that what L had told them had not amounted to evidence of sexual abuse. 5. Ms Sullivan and WPC Grey interviewed L again the following day. This time the interview was video-recorded. The claimants' case is that the questioning of L was "outrageous and oppressive"; she was pestered and pressed until she became upset, she was exposed to a number of inappropriate sexual suggestions, but despite all that nothing was elicited which could have been described as evidence of sexual abuse. Specifically, L denied that a game she had played with her father, and which had led Ms Sullivan and WPC Grey to suspect sexual abuse, had been "naughty", she said that she had played the game with her mother, and she said that B was not the only person she referred to as "Daddy". That was what she called one of her mother's boyfriends. 6. B was arrested following this interview. In the course of his interview, WPC Grey told him that the police had medical evidence that L had been sexually abused. That was untrue. Despite that, B denied having ever abused L. He was released without charge, but on 25 April 1990 Ms Sullivan attended a child protection case conference about L, at which she claimed that L had said things which could only have meant that fellatio had taken place. The Re-amended Particulars of Claim do not state whether she recommended that L be placed on the child protection register as a child who had suffered sexual abuse, but what is pleaded is that that was the consequence of Ms Sullivan's claim that what L had said B had done amounted to fellatio. That decision was confirmed on subsequent occasions, and B was not allowed to see L. It looks as if it is being alleged that those decisions were based on the recommendations of the various social workers who were responsible for L's case subsequently. 7. In due course, B issued an application for contact with L. That application was eventually consolidated with Berkshire's application for a care or supervision order in respect of L. Those applications were considered by Judge Kenny in Reading County Court in 1993. He urged the social workers to "take a fresh look" at the case. Despite that, and despite the doubts expressed in the psychiatric evidence filed in those proceedings about the propriety of the actions of the social workers and whether B had indeed sexually abused L, it looks as if it is being alleged that the social workers continued to recommend the retention of L's name on the child protection register. Eventually, following a lengthy hearing in 1995, Judge Kenny found that B had not sexually abused L in any way, and he made various orders intended to promote contact between L, B and B's parents. Eventually, a full care order was made in favour of Berkshire so that L could receive such support and counselling as she needed. In October 1996, she went to live with B, and has lived with him and his new family ever since.”
[4]Both the judgments of the judge were based on the same assumed facts. In argument in this appeal Mr Bowen naturally stressed the serious nature of the case, including the fact that B was only exonerated after a 26 day trial before Judge Kenny. He relied, for example, on Judge Kenny’s view expressed in his judgment that statements made by WPC Grey and Ms Sullivan about the interview were grossly misleading. Judge Kenny said that he was appalled that two professional people engaged in child protection work should have been so unscrupulous in seeking to prove that sexual abuse had occurred rather than to establish the facts. B’s case is that, as a result of the way he was treated by the social workers and the police he lost his employment and developed clinical depression and other psychological illness. In addition it is said that he has become an alcoholic as a direct result of the prolonged legal proceedings.[5]These proceedings were issued in 1998, which is of course nearly ten years ago, when L was 11 years of age. B was named as her next friend and would now be named as her litigation friend. However, on 2 June 2006 L’s solicitors served a notice of discontinuance, with the result that the only remaining claimant is B.[6]When the matter was before the judge on the first occasion the relevant pleading was, as we understand it, the re-amended particulars of claim. They pleaded in paragraph 39 that in carrying out the interviews the local authority and Ms Sullivan were exercising a statutory function by reason of section 1(1) of the Child Care Act 1980, which underlines the duty of local authorities to promote the welfare of children. They pleaded in paragraph 40 that WPC Grey was exercising the common law powers of a police officer and in such capacity owed a duty to L and the public as a whole to prevent the commission of crime.[7]Paragraph 41 alleged that the various social workers allocated to the case owed duties to L and B to discharge their professional functions with the care which could be reasonably expected of a reasonably competent social worker. Paragraph 42 alleged that the local authority was vicariously liable for any breach of that duty. In paragraph 44 the pleading, not entirely accurately, described the duty alleged in paragraph 41 as the vicarious duty and then, together with paragraph 45, set out the content of the duty as follows: i) on Ms Sullivan(a) to ensure that she carried out interviews, recorded L’s responses and demeanour during the interviews, represented the contents of interviews to others, all with reasonable care; and(b) to provide her line management and the Child Protection conference with such information following the interviews as a reasonably competent social worker in her position would have provided; ii) on Ms Sullivan and others to support contact if possible and competently to operate whatever system her employer put in place before (a) recommending that L be placed or remain on the Child Protection Register as an actual victim of sexual abuse; or (b) operating any system to ensure that there was a proper assessment of the allegations before informing others that L had been abused by B and/or that B had an opportunity to challenge information or decisions and/or to attend reviews and the like and/or that the Child Protection conference (and its chairman) were aware of all relevant evidential material; and iii) on Ms Sullivan and others, in the absence of a reasonable or any system introduced by the local authority, to discharge their professional duties with reasonable care and to follow internal departmental and such statutory and non-statutory guidance as was then in existence.[8]As we read the re-amended particulars of the claim, there was no express allegation that the local authority at any stage assumed a responsibility to B, as opposed to L, where such an allegation was made in paragraph 47. We return to B’s case on assumption of responsibility below.[9]As to the police, similar allegations were made against WPC Grey in paragraph 48.[10]The allegations of breach of duty made against both the local authority and the police on the basis of vicarious liability are contained in paragraph 50 and allegations of breach of duty solely against the local authority, also based on vicarious liability, are contained in paragraph 51.[11]There are, so far as we can see, no allegations in the re-amended particulars of claim that the police owed a direct duty to either B or L. The case against the police in negligence pleaded as at the date of the hearing before the judge which led to his first judgment was based on vicarious liability by reason of breach of duty on the part of WPC Grey.[12]As to the local authority, paragraph 43 alleged that it owed both L and B a duty to take reasonable care in the practical manner in which its statutory functions under section 1(1) of the Child Care Act 1980 and the Children Act 1989 were carried out. The content of the direct duty is pleaded in paragraph 46. We return to this below but, in essence, it alleged a duty to have in place appropriate systems and policies. The problem for B at the first hearing was that the pleading did not allege any breach of the direct duty. This was a point which does not seem to have been appreciated by counsel. It was pointed out by the judge, who declined to rule upon the question whether any such direct duty was arguably owed to B until the breaches of duty had been pleaded.

The police

[13]The police were not parties to the applications before the judge. However, as long ago as 1999 or 2000 the police applied to strike the claim out against them. That application, to which the local authority was not a party, succeeded before Goldring J in March 2000. He struck all the claims out on the basis that the police were entitled to witness immunity. This court allowed an appeal on the witness immunity ground: see [2001] EWCA Civ 346, [2001] 1 WLR 1575. We are not concerned with that issue. The court also held that the misfeasance in public office and the conspiracy to injure allegations were arguable. As to the duty of care it held, in agreement with Goldring J, that it was arguable that WPC Grey owed a duty of care to L on the basis that there was not only physical proximity but also “an assumption of responsibility and a special relationship between L, WPC Grey and the social worker”: see per Otton LJ at pages 1582H to 1583C. We are not of course concerned with L.[14]As to B, the court recognised that his position was different. Disagreeing with Goldring J, Otton LJ (with whom Keene LJ and Maurice Kay J agreed) held that there was an arguable case of proximity on the basis of assumption of responsibility. He accepted that there was no assumption of responsibility in the case of B up to the time he was interviewed as a suspect because up until then his relationship with WPC Grey was one of “conflict or potential conflict”. Otton LJ then said this (at page 1583H):
“However the matter did not end there. Although there was no evidence to support criminal proceedings WPC Grey nevertheless came to the conclusion that the complaint by L’s mother was of sufficient substance that L was at risk of further abuse from her father. It is arguable, in my judgment, that from then on there was a legal assumption of responsibility and a special relationship between WPC Grey and the social worker on the one hand and the father on the other, and that a duty of care arose to take reasonable steps not to damage the father by their subsequent conduct.”
[15]We should add that the court also held that there was an arguable case under the heading of ‘fair just and reasonable’ or at least that that issue should go to trial in the proceedings as between both L and B and the police. It is important to note that Mr Bowen correctly accepts that the decision of this court in that appeal is not binding as between B and the local authority. We return to the question of assumption of responsibility so far as necessary below but, we are bound to say that, try as we might, we cannot understand how the relationship of conflict or potential conflict between WPC Grey or the social worker on the one hand and B on the other became one of assumption of responsibility after she came to the conclusion that the complaint of sexual abuse against the father remained such that L was at risk of sexual abuse from him. The natural conclusion is rather that a state of conflict or potential conflict continued to exist between them. We note in passing that in D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373, while Lord Nicholls referred to Otton LJ’s judgment without apparent disapproval, the correctness of his view does not appear to have been in issue between the parties.

The first judgment

[16]In the event the judge heard argument upon and determined the question whether the various social workers arguably owed duties of care to B upon which the alleged vicarious liability was based. As stated above, he refused to consider the case based on the alleged direct duty until B had pleaded his case on breach of duty. He was in our opinion entitled to approach the matter in that way.[17]At [19] to [24] the judge rejected the submission that he should not determine any part of the local authority’s application but leave it to the trial, which was going to take place in any event. As we read his judgment, he accepted that the legal landscape had changed since the decision of this court in 2001 as a result of the decision of the House of Lords in D. As the judge observed at [25], in D the House of Lords was considering three cases in which the parents of young children had brought claims for damages for psychiatric injury after they had been suspected of and investigated for harming their children. In all of the cases, the professionals included members of the medical profession, but in one of them a claim was brought in respect of the negligence of a social worker as well. Thus Lord Nicholls said at [53] that the appeals were concerned, not merely with whether doctors and health trusts were liable in damages to the parents, but also with "the liability of a local authority in respect of its investigation of suspected child abuse". Neither Lord Nicholls nor Lord Rodger at [97] saw any difference in principle between the position of the doctors on the one hand and the social workers on the other.[18]The House of Lords held that it would not be right to impose a duty on the professionals, when they were investigating whether a child had been abused, to take account of the real risk that the parent might be harmed.

The judge particularly relied upon the way Lord Rodger put it at [110]:

“In considering whether it would be fair, just and reasonable to impose such a duty, a court has to have regard, however, to all the circumstances and, in particular, to the doctors' admitted duty to the children. The duty to the children is simply to exercise reasonable care and skill in diagnosing and treating any condition from which they may be suffering. In carrying out that duty the doctors have regard only to the interests of the children. Suppose, however, that they were also under a duty to the parents not to cause them psychiatric harm by concluding that they might have abused their child. Then, in deciding how to proceed, the doctors would always have to take account of the risk that they might harm the parents in this way. There would be not one but two sets of interests to be considered. Acting on, or persisting in, a suspicion of abuse might well be reasonable when only the child's interests were engaged, but unreasonable if the interests of the parents had also to be taken into account. Of its very nature, therefore, this kind of duty to the parents would cut across the duty of care to the children.”
[19]As the judge observed at [26], Lord Rodger concluded at [111] that the appropriate response of the law should be to minimise the danger which arose when the professionals were confronted with this conflict of interest. Since the conventional wisdom was that the interests of the child must be put first in any case of suspected abuse, the conflict of interest would be minimised if the professionals did not owe a duty of care to the parents. Liability would arise, of course, if the professionals acted otherwise than in good faith, but not if they acted in good faith but carelessly. We agree. We also agree that similar reasoning informed the speeches of Lord Nicholls at [70-78] and Lord Brown at [132] and [137]-[138]. Lord Steyn agreed with Lord Nicholls, Lord Rodger and Lord Brown. Lord Bingham dissented.[20]At [27] the judge considered and rejected Mr Bowen’s submission that the allegations being made against the social workers related to their operational competence, and not to any decisions which called for evaluation and judgment, and that that distinguished this case from the decision in D. The judge thus held that B did not have an arguable case that it would be fair just and reasonable to hold that the social workers owed a duty of care to B and that it followed that he did not have an arguable case that the local authority was vicariously liable to B for their negligence. Finally, the judge said at [31] that it may be that the social workers assumed a duty of care to L but that did not mean that they owed a duty of care to B.[21]After the judge had sent a draft of his first judgment to the parties on about 6 October 2006, Mr Bowen sent a note to the judge inviting him to alter his judgment in a number of respects. The judge for the most part refused to make alterations, but did make some. He struck out the paragraphs of the re-amended particulars of claim which alleged that the local authority was vicariously liable for a breach of a duty of care owed by the social workers. He did so under CPR 3.4(2)(a) on the basis that the facts asserted did not disclose a legally recognisable claim because it was not arguable that such a duty of care was owed to B.[22]After the judgment was handed down on 12 October, Mr Bowen applied to the judge for permission to appeal. The judge refused. One of the grounds upon which he sought permission was that the judge had failed to address the question whether (as had been held by this court in 2001) it was arguable that the social workers had assumed a responsibility to B. The judge rejected that ground on the basis that, whether they had or not, the question of whether it was arguable that it was fair, just and reasonable to impose a duty of care still had to be addressed and that B had failed on that ground. B did not at that stage renew his application for permission to appeal against the order striking out the paragraphs of the re-amended particulars of claim which were based upon allegations of vicarious liability. That was a deliberate decision.

The second judgment

[23]Instead of applying for permission to appeal against the first judgment, B applied for permission to re-re-amend the particulars of claim in order to allege a breach or breaches of the direct duty of care already pleaded. The judge had expressly contemplated such an application in his first judgment. In the draft re-re-amended particulars of claim B deleted the paragraphs which had been struck out by the judge pursuant to his first judgment. So, for example paragraphs 41, 42, 44 and 45 (referred to above) were removed.[24]Paragraphs 43 and 46 were retained. Paragraph 43 alleged that the local authority owed L and B a direct duty of care to take reasonable care in the practical manner in which its statutory functions under section 1(1) of the Child Care Act 1980 and the Children Act 1989 were carried out. In paragraph 46 it was alleged that the direct duty required the local authority itself to have systems to ensure that:
“(i) the social services department had a written policy on the manner in which social work assessments were to be carried out before findings of abuse were made and suspected victims placed upon the child protection register; (ii) the department had a written policy on supervision and that it was implemented through competent supervision and management of the said social workers; (iii) the department ensured that proper case and supervision records were maintained and retained; (iv) the department ensured that said workers were properly trained and aware of the relevant guidance; (v) without prejudice to the generality of (iv) the duty extended to having a system which supported contact between parents and their children and further ensured the participation of both parents in the child protection process, even where one parent was suspected of abuse.”
[25]Paragraph 51A was new. It alleged that in breach of the direct duty pleaded in paragraph 46 the local authority “had no reasonable or indeed any sufficient system to enable [its] employees to discharge their professional duties with reasonable care or to follow internal Departmental and such statutory and non statutory guidance Circular Guidance as was then in existence.” Paragraph 51A continued by giving particulars under the headings of “failure to properly assess”, “failure to supervise” and “failure to train/support contact”. In each case the particulars asserted a failure to have a proper system in place, including a failure to deploy proper procedures and policies, a failure to give proper instructions and a failure to supervise the local authority’s social workers.[26]Causation was pleaded in paragraph 57, which was in the same form in the re-re-amended particulars of claim as it had been in the re-amended particulars of claim. No distinction was drawn between the various causes of action. Thus it alleged (and alleges) that the breaches of duty at common law, the misfeasance in public office and the conspiracy were directly causative of the view of the social services department held from 1990 until 1994 that B was guilty of serious sexual abuse against L, the involvement of social services after 10 April 1990 because of the fear of further sexual abuse by B and the lengthy care proceedings.[27]As we read the pleading, B’s case is that breach of the various alleged direct duties led to the various social workers acting or failing to act in a way that they should have done; that is in a way in which no reasonable social worker would have acted or failed to act.[28]The local authority resisted the application for permission to re-re-amend the particulars of claim on the basis that it was not arguable that it owed a direct duty of care of the kind alleged to B. It was submitted that the imposition of such a duty would be inconsistent with the reasoning of the House of Lords in D. It was agreed that the judge would determine the question whether permission to re-re-amend should be given on the basis of written submissions and without oral argument. The judge asked himself at [3] of his second judgment whether the imposition of such a duty would place the local authority in such a conflict of interest that it could not owe that duty at the same time both to children who were suspected of having been abused and to their parents who were suspected of having abused them.[29]At [4] and [5] the judge held that, subject to one reservation with regard to paragraph 46(v), the answer to that question was no, or at least that it was sufficiently arguable that such a duty was owed. His reasoning is encapsulated in his [4] as follows:
“Save for one reservation, I do not believe that the imposition of such a duty creates a conflict of interest of the kind which applies to social workers when they carry out investigations into child abuse. It is in the interests of the parents just as much as the children that investigations are carried out competently by staff who are properly managed and supervised, that such staff are aware of the relevant local and national guidance relating to the investigation of such allegations and are properly trained in their application, and that proper records are kept and maintained of such investigations and of the management, supervision and training of staff who carry them out. I see no basis on which it can be said that if duties of this kind were owed to children suspected of having been abused, they would conflict with duties of this kind being owed to the parents suspected of having abused them. Nor have I seen anything in the speeches in D to suggest that the House of Lords would have thought otherwise.”
[30]Mr Miller submits that that reasoning is wrong. He submits that, although D was a case of vicarious liability on the facts, it is plain from D that Lord Nicholls was not drawing any distinction in the context of doctors and social workers between liability based on vicarious liability and direct liability. Thus Lord Nicholls said at [53]:
“The primary question before the House is whether doctors and, vicariously or directly, health trusts, are liable in damages to a patient in such a case. Hand-in-hand with this is a parallel question concerning the liability of a local authority in respect of its investigation of suspected child abuse.”
At [76] Lord Nicholls said that the essence of the claims was that health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly. Lord Nicholls added at [77] that, stated in that broad form, it was a surprising proposition. He rejected that approach at [78].[31]Lord Nicholls recognised that there might be cases of an assumption of responsibility or, at [91], other exceptional cases but stated the general rule in clear terms. It is that, because of the risk of conflict of interest, a suspected parent is not entitled to a higher level of protection than other perpetrators; see [85]. He recognised that social workers and doctors must not disregard the interests of parents, so that, for example they should involve them in the decision making process as fully as is compatible with the child’s best interests, but added at [89] that it is quite a step from this to saying that such professionals personally owe a duty sounding in damages. At [89] he quoted and followed the decision of the High Court of Australia in Sullivan v Moody (2001) 207 CLR 562, especially at [62].[32]He concluded at [90]:
“… In principle the appropriate level of protection for a parent suspected of abusing his child is that clinical and other investigations must be conducted in good faith. This affords suspected parents a similar level of protection to that afforded generally to persons suspected of committing crimes.”
See also per Lord Brown at [138]. See also, on the correct approach in general to suspects, Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495, per Lord Rodger at [38].[33]There is nothing in the report of D which suggests that Lord Nicholls or the other members of the majority intended to confine their statements of principle to cases in which the basis of the defendant’s liability is vicarious responsibility for the breach of duty on the part of a doctor or social worker. On the contrary the approach of the majority seems to us to apply both to cases of vicarious liability and to cases of what may be called a direct liability. We recognise that D is not binding authority for the proposition that the principles apply to cases of direct liability. However the dictum of Lord Nicholls at [53] quoted above seems to us to support the local authority’s submissions that no duty is arguably owed on the facts of this case.[34]However, we have reached the conclusion that the decision of the judge in his second judgment cannot be correct, not because there could never be a case in which a direct duty was owed to a person suspected of child abuse, but because of the duty alleged in this case. The point upon which B’s case fails was most clearly articulated in the course of argument by May LJ. He pointed out that, in order to succeed in recovering damages for breach of the alleged direct duties, B would have to establish both breach of the duty or duties and damage caused by the breach. In order to do so, B would have to establish that, if the authority had had in place a system which conformed to the principles alleged in paragraph 46 of the pleading, the social workers on the ground would have acted differently. Thus it would be necessary to show that, if a proper policy was in force and the social workers had been properly instructed and supervised they would have acted differently and in a way that a reasonably competent social worker would have acted. An essential part of B’s cause of action pleaded in this way is that one or more of the social workers acted in a way in which a reasonably competent social worker would not have acted or failed to act in a way in which a reasonably competent social worker would have acted.[35]Put another way, whether the local authority’s liability is pleaded by way of breach of a direct duty or by way of vicarious liability for a breach of duty of one or more social workers, it is necessary for B to establish a breach of duty of at least one social worker. The question in each case is whether the social worker acted or failed to act in a way in which a reasonably competent social worker would have done. Whether the reason for the social worker’s breach of duty is some failing of his own or solely because he or she was inadequately instructed, managed or supervised by his or her local authority supervisor seems to us to be immaterial. The conflict or potential conflict of interest or duty as between the interests of the child on the one hand and the suspected parent on the other exists in either case.[36]In these circumstances, it seems to us that, if the judge was correct in holding in his first judgment that the social workers owed no duty to B sounding in damages, as (in our judgment) he was in the light of D, it follows that B cannot recover by relying on a direct duty because, if it would not be fair just and reasonable to hold that the social worker owed an actionable duty to B in the first case, the same must be true of the local authority’s direct duty in the second case because in both cases it is necessary to show that the social worker acted in breach of duty.[37]For these reasons, we have reached the conclusion that on the alleged facts of the case, there is no distinction between the two types of alleged breach of duty and that the principles in D defeat B’s claim under this head just as they defeated his claim based on vicarious liability. We therefore allow the appeal against the judge’s order granting permission to re-re-amend the particulars of claim. We add three points.[38]The first is that it does not appear that the case was argued in quite this way before the judge, since he does not address the point in this way in [4] of his judgment quoted above. The second is that in reaching this conclusion we have had regard to the general principles, first that claims should only be struck out in a plain case and, secondly, that in developing areas of the law it is in general undesirable to decide issues of principle without a detailed examination of the facts at a trial. So, for example, in Phelps v Hillingdon Borough Council [2001] 2 AC 619, which was of course an education case, Lord Slynn said at page 644D:
“In recent cases before the House concerning applications to strike out statements of claim, the importance of considering actual rather than assumed facts, where there has been scope for argument as to liability, has been stressed: see X (Minors) v Bedfordshire County Council [1995] 2 AC 633; Barrett v Enfield London Borough Council [2001] 2 AC 550 and W v Essex County Council [2001] 2 AC 592.”
While recognising that principle, this is a case in which it seems to us that, on analysis, this is a plain case in the light of the reasoning of the majority in D and that there is no need for a trial in order to decide this issue.[39]The third point is that we recognise that in Phelps there are a number of statements of principle which support the conclusion that, at any rate in the context of allegations against education authorities, the question whether such an authority owes a direct duty of care the breach of which is actionable is or may be a difficult question: see eg per Lord Nicholls at page 668F and Lord Clyde at page 677C. However this is not an educational case and, for the reasons we have given, the answer on the assumed facts of this case seems to us to be clear.

Permission to appeal against the first judgment?

[40]It follows from our conclusion so far that, unless B obtains permission to appeal against the order striking out the allegations which support his case on vicarious liability and such an appeal succeeds, his case in the tort of negligence against the local authority cannot proceed and he will be left with his claims that the local authority is liable for misfeasance in public office and/or conspiracy to injure. Since, as explained above, B did not renew his application for permission to appeal to this court soon after its refusal by the judge, he first needs an extension of time in which to make the application.[41]As we said in [22] above, the decision not to apply for permission to this court in October 2006 was deliberate. A decision was taken not to seek permission but to make the application for permission to re-re-amend the particulars of claim in order to advance B’s claim for damages for breach of the alleged direct duty of care. That led to the judge’s second judgment as explained above. Thereafter the local authority sought permission to appeal against the order made pursuant to the second judgment and, when it was refused by the judge, renewed it to this court. It did so in time. Sedley LJ considered the application on paper and, on 27 April this year, he indicated that he was minded to give permission but invited B to make such representatives as he wished on that question. In response to that invitation Mr Bowen made written representations on 16 May.[42]In those written observations Mr Bowen explained the history of the facts and the proceedings in some detail and then gave detailed reasons why the application by the local authority for permission to appeal should be refused. He also stated that B had not to date sought to challenge the decision to strike out the vicarious claims. It appears that he was thus content to take his chance of succeeding on the direct claims regardless of the fate of the vicarious claims. However, he added that, if permission were granted to the local authority, he would either seek permission to appeal the decision to strike out the vicarious claims out of time or would serve a respondent’s notice on the basis that the judge should not have struck out the vicarious claims. He gave a number of reasons for that stance, including the close relationship between the direct and vicarious claims. However no step was taken at that time to challenge the first judgment. The possibility of doing so was used as a forensic tool to persuade the court not to give the local authority permission to appeal against the decision in effect not to strike out the direct claims.[43]Sedley LJ granted the local authority permission to appeal on 11 June. In doing so, he said that the appeal raised a discrete question of principle which was capable of being determined on the assumed facts and independently of the facts relevant to the misfeasance and conspiracy claims. He added that he did not think that B could, as he put it, keep in reserve an out-of-time appeal on the vicarious liability claim by way of riposte. Notwithstanding that view, B did not then take any step to obtain permission to appeal against the first judgment until 16 November, which was the Friday before the local authority’s appeal was due to be heard on Tuesday 20 November.[44]On 16 November Mr Bowen drafted a document in the form of an amendment to his earlier observations of 16 May. Even then no formal application for permission to appeal against the first judgment was lodged, although this latest document does say that B wishes to argue that the vicarious claims should not have been struck out and that, if necessary, he would lodge a respondent’s notice and seek permission on the basis of the arguments that were advanced before the judge both in a note sent to the judge after receiving his draft first judgment and in the skeleton argument lodged with the judge in support of the application for permission to appeal which failed. It is right to add that Mr Bowen referred to the fact that, in the local authority’s skeleton argument in this appeal Mr Miller submitted that, in the light of the decision in D and of the decision of this court in Lawrence v Pembrokeshire County Council [2007] EWCA Civ 446 permission to appeal would be most unlikely to be granted and added that any arguments in a respondent’s notice would be unlikely to succeed and in any event could easily be dealt with by this court. It is also right to add that on 19 November Mr Bowen served a draft appellant’s notice.[45]In our judgment, B’s approach to a possible appeal against the striking out of his vicarious claims is far from satisfactory. He appears to have been content to rely only upon the direct claim and to use the possibility of such a challenge as a forensic ploy or, as Sedley LJ put it, riposte, in order to persuade the court not to entertain the local authority’s appeal. If B wished to appeal against the order made pursuant to the first judgment, he should have done so last year. He should in any event have done so in May of this year and not waited until the very last minute, especially when even then, it appears that, as Mr Bowen confirmed in oral argument, if we had dismissed the local authority’s appeal, he would not have sought to appeal.[46]In all these circumstances we refuse B’ application for permission to appeal against that order out of time. We must add that we would not in any event have granted permission to appeal. Since the decision of this court in these proceedings in 2001, this part of the law has been clarified by the decision of the House of Lords in D. We agree with the judge that the principles there set out lead to the conclusion that the social workers owed no duty of care to B as a parent suspected of child abuse and that the contrary is not arguable. The only point upon which a contrary argument might have been advanced is the suggestion that the social workers assumed a legal responsibility to B along the lines suggested by Otton LJ. Whatever the position was thought to be in 2001, now that we have the benefit of the reasoning in D,we do not think that it is arguable that the social workers ever assumed a responsibility to B. On the assumed facts they remained of the view that L was, as Otton LJ put it, “at risk of further abuse from her father”. That being so there remained a conflict or potential conflict between the social workers’ duty to L and their duty (if any) to B because they thought (albeit wrongly) that he might sexually abuse her in the future. The existence of such a conflict or potential conflict formed the basis of the decision in D that no duty of care was owed to the suspected parent as opposed to the child. In the light of the decision and reasoning in D, we cannot see any arguable basis upon which B’s claim that the social workers owed a duty of care to B could succeed.

CONCLUSION

[47]In all the circumstances, we allow the appeal of the local authority against the order granting permission to re-re-amend the particulars of claim to allow B to rely upon an alleged direct duty owed to B. We appreciate that it may not follow from this conclusion that all the draft re-re-amendments must be excluded. We invite counsel to consider the appropriate state of the pleadings and to agree an order in the light of this judgment. We refuse B’s application for an extension of time for making an application for permission to appeal against the judge’s order striking out the allegations in negligence based on the vicarious liability of the local authority. If an extension were granted, we would refuse the application for permission to appeal on the basis that an appeal would have no real prospect of success.

POSTSCRIPT

[48]We would like to add by way of postscript that the delays in this case seem to us to be lamentable and do no credit to anyone. There have been two separate applications to strike out part of B’s case, by the police on the one hand and the local authority on the other. There has also been an application to strike out part of the defences on the ground that they amount to a collateral attack on the decision of Judge Kenny. These could surely all have been resolved, hopefully in one hearing with all parties represented, several years ago and the action tried by now. In saying this we do not wish to carry out an inquiry into the reasons for the delays or to apportion blame but the whole point of the Woolf reforms was to limit satellite litigation and to reduce the cost of dispute resolution. We would simply like to remind the profession and judges of these principles and to underline the importance of robust case management which should be designed to resolve cases on their merits with the least delay and at proportionate cost.[49]We hope that it will now be possible for B’s claim based on misfeasance in public office and conspiracy, both of which have been held to be arguable, to be resolved by settlement (with or without mediation) or by trial without further delay. In this connection, we appreciate that the view we have taken of the submission that the social workers assumed a responsibility to B might encourage the police to revisit that issue, in so far as it related to them. Although the Chief Constable is not a party to this appeal, we discourage him from doing so. That is an issue which should be determined at the trial of the action. In the absence of settlement such a trial will have to take place in any event, there has already been too much satellite litigation in this case and the assumption of responsibility issue as between B and the police is likely to take a very short time at the trial.

Cited in 1 later judgment