Heather Archibald & Ors v East Sussex County Council [2026] EWHC 732 (KB)

[2026] EWHC 732 (KB)Case No KA-2025-000010
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM THE COUNTY COURT AT BRIGHTON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/03/2026
Before
MRS JUSTICE TIPPLES DBE
Between
(1) HEATHER ARCHIBALDAppellants/(2) SIMON ARCHIBALDClaimants(3) RUDI ARCHIBALDAppellant(4) SETH ARCHIBALDAppellant(5) ROBERT ARCHIBALDAppellantEAST SUSSEX COUNTY COUNCILRespondent/
Mr Nicholas Bowen KC (instructed by Irwin Mitchell) for AppellantsMr Ronnie Dennis (instructed by East Sussex County Council Legal Services) for RespondentHearing Hearing dates: 17 and 18 March 2026
JudgmentThis judgment was handed down remotely at 10.00am on Tuesday 31 March 2026by circulation to the parties or their representatives by e-mailand by release to the National Archives..............................
[1]By an order made on 16 December 2024 His Honour Judge Simpkiss sitting in the County Court at Brighton struck out the claim form and particulars of claim in this action as an abuse of process and dismissed the appellants’ applications to amend the claim form and particulars of claim. The applications to amend included an application to add the Governing Body of West Rise Junior School as a defendant.[2]The applications were heard by the judge on 5 June 2024 and he handed down judgment on 7 August 2024. There was then a hearing dealing with costs and consequential matters, which led to the order of 16 December 2024 formally recording the judge’s decision. Permission to appeal was refused and, by an order made by the High Court, the appellants were given permission to appeal out of time.[3]The appellants, Mr and Mrs Archibald, and their children, Rudi, Seth and Robert (who are all now aged over 18), were represented by Mr Nicholas Bowen KC. The respondent, East Sussex County Council, was represented by Mr Ronnie Dennis. The Governing Body of West Rise Junior School did not appear and was not represented. The Court was informed on the first day of the hearing by Ms Louise Muller, the Headteacher at West Rise Primary School that:
“after a school amalgamation in May 2025, where West Rise Junior School was ‘closed’ and amalgamated into West Rise Primary School, its former Headteacher is no longer in employment with [East Sussex County Council] and the Governing Body was disbanded and no longer exists. … there is therefore no one from West Rise Junior School available to attend the hearing.”
[4]The judge summarised the background facts and history to this action in these terms in his judgment (and there is no issue between the parties in relation to this summary):
“[4.] These proceedings arise out of the Defendant’s decision to convene an Initial Child Protection Conference (“ICPC”) under section 47 of the Children Act 1989 in relation to [Rudi [the third claimant/appellant]]. This was taken at a meeting on 13 December 2019 attended by various representatives of the Defendant’s Children’s Services Department, clinicians from Great Ormond Street Hospital (“GOSH”), Dr. Atkinson and Mr. Mike Fairclough. [5.] Mr. Fairclough was the headteacher of a primary school maintained by the Defendant called West Rise. [Rudi] had attended another primary school maintained by the Defendant, Langney Primary School, between October 2017 and May 2018 when he was withdrawn by his parents and then attended West Rise between October 2018 and December 2019. At that stage [Mr and Mrs Archibald] withdrew him and he was then home educated. [6.] The pleaded case sets out the detailed history from the time [Rudi] was at Langney and West Rise. [Rudi] has suffered from a number of medical issues from very early in his life and GOSH were involved with him since infancy. It is the pleaded case that he also suffers from speech and communication difficulties, learning difficulties and has special educational needs. [7.] At the heart of the claim is an allegation that Mr. Fairclough and Laura Warren, the Special Educational Needs Coordinator (“SENCO”), dishonestly fabricated allegations that [Mrs Archibald] would come to school on a weekly basis and claim that [Rudi] had terminal cancer and would be dead by the age of 40. It is alleged that these allegations were repeated in the presence of the [Rudi]. [8.] At a conference call on 24November 2019 with GOSH safeguarding team the above allegations were made by Mr. Fairclough and Ms. Warren and this resulted shortly afterwards in a child protection referral. This in turn led to the meeting on 13December 2019 and the section 47 investigation. The Claimants plead that without the allegedly fabricated information there would have been no reasons for GOSH to have made a referral and therefore the process would not have been initiated.”
[5]The judge then went on to summarise the proceedings which he described as “arising out of the events” summarised at paragraphs 4 to 8 of his judgment. Three separate claims were commenced against the respondent. These separate claims are as follows:a. First, the judicial review claim. These proceedings were commenced by the first and second appellants, as claimants, against the respondent and “West Rise Junior School”, as defendants. Great Ormond Street Hospital (“GOSH”) was named as an interested party. The claim form was filed on 27 March 2020 and issued by the court on 28 April 2020. I shall refer to this claim as “the judicial review claim”.b. Second, a county court claim issued on 14 May 2020. This claim was brought by the first, second and third appellants, as claimants, against the respondent and GOSH, as defendants. I shall refer to this claim as “the first county court claim”.c. Third, this claim, which is numbered HO5YY282, and was issued on 31 August 2021, and has been brought by the appellants, as claimants, against the respondent, as defendant. I shall refer to this claim as “the second county court claim”.[6]The judge held, on the respondent’s application to strike out the claim, that the claim was an abuse of process under the rule in Henderson v Henderson (1843) 3 Hare 100, as now understood in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, HL, and should be struck out. As a result of that conclusion, the judge held that the appellants’ application to amend the claim form to add a claim for misfeasance in public office against the respondent failed. The judge then held that the appellants’ proposed claim against the Governing Body of West Rise Junior School for misfeasance in public office was not reasonably arguable and he dismissed the application to join them as a party. He also held that, as the Governing Body of West Rise Junior School were a party to the judicial review claim, he would have refused the application to join them as a party because to do so would have been an abuse of process under the rule in Henderson v Henderson.[7]The appellants advance four grounds of appeal:a. Ground 1 “[Abuse of process issue]: failure to take into account twelve relevant factors as set out in the accompanying submissions when striking the Johnson v Gore Wood balance between the private interests of [the appellants] and the public interests of [the respondent] and the court”.b. Ground 2 “[Abuse of process issue]: the omission to reference a potential damages claim (in addition to the point that the judicial review would influence the Scottish proceedings) as a reason why the [judicial review claim] was or not academic was not a factor of any weight in assessing whether this claim was an abuse of process”.c. Ground 3 “[Abuse of process issue]: reached the unsupportable conclusion that the [respondent] and the Governors [of West Rise Junior School] were being unduly harassed in circumstances where this follow-on claim for damages was distinct from the judicial review and that neither party had yet to meet and respond to the matters arising under the allegedly abusive Article 8, negligence or misfeasance claim”.d. Ground 4 “[Abuse of process issue]: erred in law … in reaching the conclusion that a headteacher who deliberately manipulates established child protection/safeguarding processes is not acting as a public officer for the purposes of the tort of misfeasance in public office.”[8]In relation to the first three grounds a central issue between the parties on the appeal is whether the judge was correct to find that the matters alleged in the second county court claim arise out of “exactly the same events” which gave rise to the judicial review claim. Therefore, before I turn to the judge’s judgment in more detail, and parties’ submissions on the appeal, the best place to start is to explain the nature of each claim and the relevant chronology in relation to each one. The documents referred to below were all before the judge and, in order to put the appellants’ grounds of appeal in context, and understand the parties submissions it is necessary to set them out in some detail. Claims against the respondent The judicial review claim

Claims against the respondent

[9]These proceedings were, as set out above, issued on 28 April 2020 against the respondent and “West Rise Junior School” (the defendants).[10]The claim form, which was completed by the first and second appellants (the claimants) acting in person, identified the decision to be judicially reviewed in section 3 as: “the unlawful section 47 assessment and subsequent child protection decisions by East Sussex County Council”.[11]Section 4 of the claim form said that the claim did not include any issues arising from the Human Rights Act 1998.[12]Section 7 said that the details of remedy being sought were:
“(i) Quashing order; (ii) A prohibiting order against any and all further false allegations by East Sussex County Council and partner agencies; (iii) a declaration that the claimants have been discriminated against; (iv) full apologies from all agencies involved plus a public apology to reunite us with our community; (v) damages; (vi) costs; (vii) fees; (viii) further or other relief”
. The nature of the claim for damages was not identified in the claim form.[13]In section 9, the statement of facts relied on, the claim form says this:
“Brief Chronology 06/12/2019 Great Ormond Street Hospital made a referral to East Sussex County Council on the basis th[?] were unable to attend an appointment we attempted to rearrange directly with Great Ormond Street Hospital themselves. As we attempted to rearrange we consider this to be a malicious referral. 13/12/2019 Strategy meeting decides to instigate section 47 assessment and child protection conference. We were not privy to the above information until 17/01/2020 and 05/02/2020. 16/12/2019 Headteacher Mike Fairclough of West Rise Junior School advised us that they had reported [?] Childrens Services at East Sussex County Council. We were later informed that the given r[eason] was a false allegation that mum had been attending school every day saying our son had te[rminal] cancer and would die aged 40. This is completely contradicted by the evidence. As such we consider this to be a malicious referral. 17/01/2020 During our sons birthday celebrations a social worker and health visitor attend our home without notice and insist on entering. The given reason is to explain allegations. This was the first official notification of the allegations of the section 47 assessment … 31/12/2020 … A second home visit by social worker Jodi was undertaken to explain the child protection conference. We have raised concerns and the wrong decision given that a section 47 assessment had not been completed. …. 23/01/2020 The ICPC goes ahead despite us raising concerns that the Local Authority are out of time and the fact that the Local Authority have failed to respond to our submitted evidence …”
[14]The allegations made under the heading “16 December 2019” are important because, as set out below in relation to the second county court claim, these are the same allegations which form the basis of the appellants’ claim for misfeasance in public office.[15]The claim form was then supported by a document entitled “Supplementary statement of truth: acknowledgment of service on behalf of the defendant”, together with a lever arch file of papers. The matter came before me on the papers. On 19 June 2020 I refused the first and second appellants permission to apply for judicial review against the respondent and West Rise Junior School. I certified the claim against West Rise Junior School as totally without merit.[16]On 27 June 2020 the first and second appellants served notice seeking to renew their application for permission to apply for judicial review at an oral hearing, and served an 18 page document in support of this. This document included reference to Article 8 of the European Convention on Human Rights (“Article 8”) at paragraph 55 and said the following:
“The medical diagnosis of Mr Rudi Archibald, Mr Simon Archibald and Mrs Heather Archibald are personal to them and as such is part of their private life. Given the evidence, the First Defendant, East Sussex County Council has no reason to interfere with it. It is hardly unlikely that the limitation of Art. 8 is lawful as the test seems not to be satisfied. Based on the assumptions, measures taken against the Archibald family appear to be disproportionate, inappropriate and unreasonable.”
[17]The renewal hearing came before Mr Justice Morris on 14 August 2020 and, by that time, the first and second appellants were no longer acting in person and were represented by Elizabeth Fox of Counsel.[18]Mr Justice Morris granted the first and second appellants’ application for permission to apply for judicial review against the respondent. The directions made by Mr Justice Morris included the following:
“[3(a)] The Claimants shall file and serve their Amended Statement of Facts and Grounds, along with witness statement evidence which sets out the Claimants’ position in Scotland in relation to child protection issues and their contentions as to what effect (legal or otherwise), if any, a decision to quash the Defendant’s decision dated 23 January 2020 to adopt a child protection plan in respect of [Rudi] will have on the current situation relating to [Rudi] in East Lothian, by 4pm on 4 September 2020;…”
[19]On 2 October 2020 the first and second appellants filed their amended statement of facts and grounds which had been settled by counsel. Paragraph 4 explained the factual background in these terms:
“[4.] … Although this matter is factually complex, it may be distilled into the following summary: (a) [Rudi] has had numerous medical assessments and diagnoses throughout the course of his life, often leading to professional disagreements as to appropriate diagnoses and the interventions required to meet his needs; (b) In late 2019, the Defendant local authority received referrals relating to concerns about [Rudi’s] welfare and school attendance. It is understood that concerns were raised with professionals at Great Ormond Street Hospital … about the potential of fabricated induced illness (“FII”); (c) On 13 December 2019, the local authority held a strategy meeting. The parents were not aware of the referrals made or the meeting which took place. At this meeting, the local authority decided to initiate section 47 Children Act enquiries and to convene an Initial Child Protection Conference [ICPC]. At this stage, no assessment had been carried out; (d) On 23 January 2020, the local authority convened an Initial Child Protection Conference, which the Claimants attended, and at which a Child Protection Plan [CPC] was implemented.”
[20]Paragraph 7 of the amended statement of facts and grounds explained that, as the result of the hearing before Morris J and the orders he had made, there are: “therefore two decisions which are the subject of challenge in this matter:(a) the decision to convene an ICPC on 13 December 2019; and(b) the decision to implement a CPP taken on 23 January 2020”.[21]The grounds of claim were identified in the amended statement of facts and grounds as threefold:a. Ground 1: The process by which the decision was taken to convene a Child Protection Conference, and ultimately to implement a Child Protection Plan, was procedurally improper and/or unlawful.b. Ground 2: The respondent erred in failing to conduct a proper consultation in its decision to convene an ICPC.c. Ground 3: The respondent erred and/or acted irrationally in failing to take account of relevant considerations in its decision to implement a CPP.[22]Then, in relation to the remedies sought, the amended statement of facts and grounds explained why, given the first and second appellants had moved to Scotland, the claim was not academic. Paragraphs 39 and 41 said this:
“[39.] At the renewed oral permission hearing, Mr Justice Morris queried whether the claim might be academic given that the Claimants no longer live in the Defendant’s area. However, the Claimants contend that the ongoing child protection matters in Scotland are currently proceeding solely on the basis of a referral from [East Sussex County Council]. In these circumstances, and in any event, a quashing order of ESCC’s decision to hold an ICPC and/or implement a CPP would very likely have a significant impact upon the events taking place in Scotland. … [41.] It is therefore contended that this matter is not academic. The decisions being taken in Scotland are on the basis of the decisions made by ESCC and the referral to East Lothian Council, and an order quashing one or both of those decisions is likely to have a significant impact upon the Children’s Reporter’s subsequent decision to seek statutory intervention in [Rudi’s] life.”
[23]The respondent maintains that paragraph 41 is crucial because if, in reality, the first and second appellants had a damages claim they intended to pursue, it could and should have been mentioned in order to explain why the judicial review claim was not academic. The appellants maintain that they were under no duty to warn the respondent about their intention to pursue damages claims against them for breach of Article 8 or misfeasance in public office.[24]The relief sought was set out at paragraph 43 of the amended statement of facts and grounds which was(a) a quashing order of the decisions;(b) a declaration that the respondent acted unlawfully in implementing a Child Protection Plan;(c) any further relief as appropriate; and(d) costs. The relief sought did not include any claim for damages at all, whether for breach of Article 8 or misfeasance in public office or otherwise.[25]The point made by the respondent here is that, given damages were originally claimed in the claim form, but were no longer sought in the amended statement of facts and grounds (which had been settled by counsel), the clear impression given by the claimants (ie the first and second appellants) at this stage in the judicial review claim to them, as a defendant to that claim, was that the claimants did not intend to pursue any such claim. This is because, once the first and second appellants had taken legal advice from counsel on their claim, the claim for damages had disappeared from the relief sought and, when asked why the judicial review claim was not academic, they failed to mention any outstanding damages claim they intended to pursue.[26]The respondent served its detailed grounds of resistance on 16 October 2020, the first and second appellants served a reply on 29 October 2020 and the matter was listed for a substantive hearing on 3 December 2020.[27]On 19 November 2020 the first and second appellants served their skeleton argument in readiness for the hearing. The skeleton argument was settled by Mr Nicholas Bowen KC and Elizabeth Fox of counsel. The skeleton argument set out the first and second appellants’ detailed arguments in support of each of their grounds. Then, in relation to remedy, paragraph 67 of the skeleton said this: “[67.] It is further submitted that, were the court to conclude that this claim is academic, it would leave the Claimants without a public law remedy in circumstances where their article 8 rights have been violated. The pain, suffering and distress caused to the Claimants and their family as a result of the actions taken by the Defendant must be acknowledged”.[28]It is therefore clear that the first and second appellants knew that they had a claim for breach of Article 8 in 2020. However, there is no mention of any claim for damages, whether for breach of Article 8 or misfeasance in public office, in the skeleton argument. Rather, as set out in paragraph 67 it appeared that they were seeking “acknowledgment” that their Article 8 rights had been violated, rather than any damages as a consequence.[29]On or about 23 November 2020 the parties agreed to settle the judicial review claim and agreed to the terms of a consent order. The first and second appellants’ solicitors applied to the Administrative Court for the consent order to be approved explaining that “the parties have agreed the attached order and claim has settled. Accordingly, there is no need for a final hearing on 3 December 2020”.[30]The consent order was approved by Mrs Justice Ellenbogen on 25 November 2020 (and sealed by the court on 26 November 2020). The order was made in these terms:
“It is ordered by consent that: 1. The Defendant’s [the respondent’s] decision of 13 December 2019 to convene an Initial Child Protection Conference in respect of [Rudi] was unlawful and as a result the Defendant’s decision of 23 January 2020 falls away and is withdrawn. 2. For the avoidance of doubt, the final hearing listed on 3 December 2020 is vacated. 3. The Defendant shall pay the Claimants’ [the first and second appellants’] reasonable costs of these proceedings, to be subject to detailed assessment if not agreed.”
[31]The evidence of Mr Gareth Jones, the respondent’s solicitor, is that he understood “that to be the end of the matter as did my client, [the respondent], which is why they approved the settlement” (paragraph 42 of his witness statement dated 28 October 2022). This evidence was not challenged by the appellants in answer to the respondent’s strike out application.[32]The next thing to happen was that on 7 December 2020 the first and second appellants’ solicitors sent the respondent an email as follows:
“Following the conclusion of the judicial review, our clients have instructed us to pursue a claim for a violation of the family’s Article 8 ECHR rights as a result of the events and losses which occurred as a result of your client’s decision of 13 December 2019. The limitation deadline in respect of a claim is 12 December. I am writing to seek your client’s agreement to limitation moratorium of 4 months to enable us to review relevant records and to draft a letter before action. This would avoid the need to incur a costly court fee at this point in time and allow the parties to engage in unrushed pre action correspondence, ensuring the matter only goes to court if absolutely necessary. I would be grateful if you could take instructions and come back to me by Wednesday by the latest …”
[33]The respondent’s solicitor responded on 8 December 2020 stating that his client agreed to the four month moratorium as requested. On 31 March 2021 the first and second appellants’ solicitors sought a further moratorium until August 2021 on the basis that they had considered the disclosure provided by way of social security records, and would be sending a letter before claim, and it would be better to spend time engaging in pre-action correspondence than incurring the costs of issuing proceedings. The respondent’s solicitor agreed to this proposal on 31 March 2021. Pre-action correspondence duly followed, and the proceedings were issued on 31 August 2021. This is explained further below.[34]I pause here to observe that it is, perhaps, odd that the respondent’s solicitor agreed to the appellants’ solicitors’ requests for limitation moratorium and did so without any mention that the respondent thought the matter was at an end. However, in the evidence before the judge the respondent’s solicitor explained what he did, and why he did it, and that evidence was not challenged. In addition to that, once the appellants’ claim for damages for breach of Article 8 was fully articulated in its letter before claim, the respondent’s first response was that it was an abuse of process.

The first county court claim

[35]This claim form was issued on 14 May 2020 by the first, second and third appellants (the claimants) against the respondent and GOSH (the defendants).[36]The brief details of claim described it as “a claim with regard to the contravention of the Equality Act 2010; the Data Protection Act 2018 and GDPR, the Children and Families Act 2014; the Chronically Sick and Disabled Persons Act 1970 and/or other laws contained in the particulars of claim”. The remedy sought was identified to include “damages of not more than £68,000”. The claim form was signed by the first appellant, acting as a litigant in person.[37]The claim form did not include a claim for damages for breach of Article 8 or misfeasance in public office.[38]The claim form was sent to “the Law Courts” in Lewes under cover of a letter from the appellants dated 13 October 2020 explaining that the claim was to be “issued protectively and not served as a matter of urgency” as a letter of claim had not been served, and public funding had not been secured.[39]The particulars of claim were prepared by the first and second appellants acting in person and run to over 30 pages. The copy in the bundle is signed by them, but not dated.[40]Paragraphs 2 to 23 of the particulars of claim set out Rudi’s medical history and disabilities. They then explain that the appellants had moved to Scotland. Paragraphs 34 to 68 set out the background to the claim. Discrimination is alleged at paragraphs 69 to 77, harassment and victimisation alleged at paragraphs 78 and 79, and discrimination by perception alleged at paragraphs 79 to 81. The final paragraph of the particulars of claim, paragraph 81, alleges “due to the above evidence it is the claimant’s case that this is a claim in regard to ongoing disability discrimination in direct contravention of the Equality Act 2010”.[41]Paragraphs 42 and 47 of the particulars of claim allege:
“[42.] Mr Fairclough, Headteacher of West Rise Junior School made referral to Children’s Services on 06/12/2019 citing that parents refused to engage with ESBAS who had been sprung on them less than a month before and they had not heard from. Further to this Mr Fairclough alleged the parents had been coming into the school every week with a folder full of cancer documents telling staff that Rudi had terminal cancer and would die aged 40. He then went onto contradict himself by stating Rudi Archibald had not attended school long enough for him to be assessed by school staff as his attendance was only 21%. Mr Justice Morris of the Administrative Court, Queens Bench Division has upheld this as “made up.” … [47.] The social worker Jodi Conners explained to the claimant’s that they had been reported to Children’s Services by the headteacher of West Rise Junior School, Mr Mike Fairclough. The social worker went on to explain the procedure for a section 47 assessment (which East Sussex County Council have now admitted they did not carry out only enquiries) and the subsequent Initial child protection conference carried out under section 17 of the Children’s Act 1989…”
[42]The appellants then make allegations in relation to the Initial Child Protection Conference and, in particular, that “by 23/01/2020 the First Respondent was out of time to bring this ICPC and did not have statutory power to do so under section 17” and that “this has been upheld in the High Court by Mr Justice Morris as the Defendants themselves admitted they did not carry out a section 47, only made enquiries” (paragraphs 50 and 51). At paragraph 56 the appellants allege that “given the evidence it is the claimants’ case an abuse of power, maladministration and misfeasance in public office has also taken place”.[43]Then at paragraphs 58 and 59 the appellants alleged:
“[58.] Due to evidence of Disability Discrimination, Incorrect process and Misfeasance in Public Office, the Claimant’s [sic] issued a Judicial Review Pre-Action Letter and applied to the First Tier SEND Tribunal for Disability Discrimination against West Rise Junior School in February 2020. The first respondent Solicitor Johanne Simmonds gave an entirely unacceptable, false response to the Judicial Review Pre-Action Letter before claim… [59.] It is the Claimants’ case that they were left with no other choice but to apply for Judicial Review which was subsequently accepted and Issued by the Royal Courts of Justice on 28/04/2020. A Permission Hearing was scheduled for 13/08/2020 after an appeal by the Claimants and Permission subsequently granted by Mr Justice Morris.”
[44]The particulars of claim therefore include the very same allegations made in the judicial review claim, namely that Mr Fairclough alleged that the first and second appellants had said that the third appellant had terminal cancer, would die aged 40, refer to the respondent’s involvement in the section 47 assessment and Initial Child Protection Conference, and allege that there had been abuse of process, maladministration, misfeasance in public office. Further, the first, second and third appellants said that it was due to evidence of disability discrimination, incorrect process and misfeasance in public office that they were left with no choice but to commence the judicial review claim.[45]The claim form was sent to the respondent, together with the particulars of claim (unverified by a statement of truth) on 16 October 2020. The claim form was therefore sent to the respondent more than five months after it had been issued, and was not served on the respondent in time. On 26 April 2021 the respondent applied to the county court for a declaration that the court had no jurisdiction to hear the claim, and that the claim form be set aside. In the evidence in support of the application the respondent also explained that: “The First Defendant does not accept all the facts as set out by the Claimants in the Particulars of Claim or any of the allegations, as far as they can be understood. The Particulars of Claim consist of thirty-three pages and the claim against the First Defendant is not properly pleaded. It is not admitted that the First Defendant has breached any statutory duty it owes towards the claimants, including but without prejudice to the generality of the foregoing, it is not admitted that it has breached any duty under the Equality Act 2010”.[46]That application was opposed by the appellants and was heard by Deputy District Judge Mills on 12 May 2021. The Deputy District Judge granted the declaration sought by the respondent and set aside the claim form dated 14 May 2021, because it had expired unserved.

The second county court claim

[47]The claim form was issued by the appellants (the claimants) in the County Court Money Claims Centre on 31 August 2021 (having been received by the court on 19 August 2021). The respondent, East Sussex County Council, was named as the defendant.[48]The brief details of claim identified that:
“the Claimants bring claims under the Human Rights Act 1998 for breaches of their Article 8 ECHR rights, arising out of child protection measures by the Defendant in respect of Rudi Archibald. The Claimants also bring claims at common law for negligence and breach of duty. The Claimants claim declaratory relief, damages and interest (pursuant to section 69 of the County Courts Act 1984) for breaches of their Article 8 ECHR rights; damages at common law for negligence and breach of duty; and costs.”
[49]The value of the claim was stated to be more than £25,000. The claim form stated that the particulars of claim were to follow.[50]On 13 May 2021 the appellants’ solicitors sent the respondent a formal letter before claim, which required a response by 4pm on 16 July 2021. That letter summarised the details of the matters being challenged in these terms: “The unreasonable, disproportionate and unlawful interference in family life by the taking of misconceived child protection measures to protect Rudi; such steps constituting breaches of section 6(1) of the Human Rights Act 1998. The matters complained of below were unjustifiable violations of Article 8 of the European Convention on Human Rights and require the Council to apologise and to pay damages as just satisfaction for pecuniary and non-pecuniary loss caused by the Council’s actions”.[51]The letter before claim was the first time that the appellants had set out in detail the nature of their proposed claim against the respondent. The letter before claim did not include any allegations of misfeasance in public office against the respondent, or indeed anyone else.[52]The respondent sent their response to the letter before claim on 14 July 2021 and at the outset explained that: “[2.] … you indicate that the claimants (as defined therein) propose to bring a claim against the Council for breach of their rights under Art. 8 of the European Convention on Human Rights. [3.] We consider that, if any such claim was to be brought at all, then it could and should have been brought as part of the judicial review proceedings in claim no CO/1549/2020. As you know, those proceedings were settled by consent order approved by Mrs Justice Ellenbogen on 25 November 2020. Accordingly, any such claim would now constitute an abuse of process. [4.] For this reason alone, the Council denies that the claimants are entitled to any further relief …”.[53]The claim form and particulars of claim were served on 30 September 2022, over a year after the claim form had been issued. This was as a result of agreement between the parties that the time for service of the claim form, the particulars of claim, and any supporting evidence be extended until 30 September 2022. Time was extended by agreement for the reasons the appellants explained to the court in their application for the consent order to be approved. This stated that a subject access request had been sent to West Rise Junior School and GOSH seeking records relating to the claim. It was said that GOSH had delayed in producing the records, they were eventually received in January 2022, were extensive, required review by the claimants’ legal team and “the parties are agreed that it would be sensible for counsel to be able to review our summary notes and key records identified, and to advise the claimants, before serving the claim form and particulars of claim”. The first version of the particulars of claim is entitled “draft Particulars of Claim”, was signed by Mr Bowen KC and is dated 30 September 2022. Notwithstanding what is said in the claim form, the particulars of claim do not include a claim for common law negligence and breach of duty.[54]I now turn to the allegations in the particulars of claim. Paragraph 1 identifies who the claimants are. Paragraph 2 contains the following allegations in relation to the respondent:
“[2.] The Defendant local authority (“the Council”) was, at all material times, the responsible body for exercising in relation to Rudi, child protection functions contained in part IV of the Children Act 1989, the Children Act 2004 and its functions relating to assessing and providing special educational provision to meet Rudi’s special educational needs under the Children and Families Act 2014.”
[55]Paragraph 3 identifies the primary schools attended by the third appellant and, in particular, between October 2018 and December 2019 he attended West Rise Primary School, and that his parents took him out of that school on 16 December 2019 and he was then educated from home. It is alleged that this school was maintained by the council and the headteacher was Mr Mike Fairclough (paragraph 4). Paragraph 5 alleges that:
“[5.] The Council is vicariously liable for violations of the claimants’ Convention rights and misfeasant acts and omissions caused by the said headteacher’s and / or other staff members and West Rise.”
[56]The nature of the claim is then alleged at paragraphs 6 and 7 in these terms: “The Nature of the Claim [6.] All 5 members of the Archibald family seek damages for by way of just satisfaction to reflect non-pecuniary and pecuniary loss caused by the violations of their rights protected by Articles 8 of the European Convention on Human Rights. The parents seek damages, to include aggravated damages for misfeasance in public office [footnote 1: An application to amend the claim form will be made in due course]. [7.] The violations and misfeasance occurred during two distinct phases: Phase 1 [a.] In or around early December 2019, whilst Rudi was a pupil at West Rise, Mike Fairclough deliberately made false claims and misrepresented information about Rudi’s medical history provided to him by the 1st and 2nd claimants (“the parents”) in good faith in September / October 2018. [b.] Mike Fairclough and/or other members of staff at West Rise informed clinical staff at Great Ormond Street Hospital (GOSH) at a multi-disciplinary meeting on 4 December 2019 that the 1st claimant mother was causing Rudi harm by exaggerated and false claims that he had a terminal illness, “would be dead by 40” and that he was far more disabled than he really was. [c.] The allegation that emerged from the meeting was that the 1st claimant mother suffered from a psychiatric condition known as induced illness syndrome which caused her to invent and/or exaggerate Rudi’s medical problems. [d.] This information led to child protection referrals on 5 and 6 December 2019 by both GOSH and Laura Warren, the Special Educational Needs Coordinator (SENCO) at to the Council’s “Single Point of Access” portal. Phase 2 [e.] The said referrals led to the Council initiating a child abuse investigation comprising of a strategy meeting on 13 December 2019 and thereafter a full child protection conference (CPC) and the adoption of a Public Law Outline with a view to obtaining a care of supervision order.” [7.] The violations and misfeasance occurred during two distinct phases: Phase 1

Phase 2

[57]The next section of the particulars of claim sets out alleged facts. These relate to events which start in July 2017, and are set out under headings relating to Langney Primary School, the ECHP Plan, GOSH and Eastbourne General Hospital. Then, between paragraphs 46 and 58, the following allegations are made in relation to what was said by Mr Fairclough, the headteacher at West Rise Primary School. “[46]. On 24 November 2019 a conference call (instigated by Mike Fairclough) took place between the GOSH safeguarding team, Dr Rachel Atkinson (consultant paediatrician), Dr Glaser, Mike Fairclough and Laura Warren. Mike Fairclough and/or Laura Warren raised safeguarding concerns, particularly that the 1st claimant had told the school, on a weekly basis, that Rudi had a cancer diagnosis and would not live beyond the age of 40. This statement:(a) was a fabrication;(b) could not have been a product of a misunderstanding based upon the discussion that had taken place in September / October 2018 and rehearsed at paragraph 31 above; and(c) because neither parent had attended the school weekly, their visits had been restricted to the parents dropping Rudi off in reception on the days he attended. [47.] Following further consultation between the school and clinicians from GOSH a multi-disciplinary meeting took place on 4 December 2019 … [48.] At the meeting Mike Fairclough repeated his bogus claim that the 1st claimant had told the school, on a weekly basis, that Rudi had a cancer diagnosis and would not live beyond the age of 40. This was untrue but was relied upon and believed by the other professionals at the meeting. [49.] The next day, 5 December 2019, a child protection referral was made from GOSH to the Council’s SPOA. The referral document raised the possibly of fabricated illness … [54.] On 6 December 2019, Laura Warren made a further formal referral (for and on behalf of Mike Fairclough) to the Council via the SPOA portal. This referral expressed similar concerns and repeated much of the substance of the referral by GOSH and concluded:
“We would like Children’s Services to intervene & to investigate these issues & to stop Rudi’s parents from telling him & others that he is seriously ill with a life limiting illness… [57.] At no stage prior to 17 December when the family were visited by social workers were the parents were given any opportunity to answer the very serious allegations that Mike Fairclough and Laura Warren were making, specifically the dishonest and fabricated allegation the 1st claimant would come into school on a weekly basis and claim that Rudi had terminal cancer, would be dead by 40 and on an unspecified number of occasions had repeated this in Rudi’s presence.”
[58]The events in relation to the strategy meeting convened by the respondent on 13 December 2019, the section 47 investigation and the initial child protection conference are set out at paragraphs 59 and 60. This includes the allegation that:
“[60.] … The most significant piece of information, without which there would have been no justification for the GOSH team to resort to a child protection referral, was that the 1st claimant was alleged by West Rise to be saying on a weekly basis, and in earshot of Rudi, that he was terminally ill with cancer and would be dead by 40.”
[59]Paragraphs 61 to 68 allege what happened in the judicial review claim and, in particular, that it has been settled by a consent order. Paragraphs 69 to 70 set out that the family had moved to Scotland in April 2020, proceedings has been commenced there by East Lothian Council for a care order, but those proceedings had since been withdrawn.[60]Paragraph 74 to 81 set out the appellants’ rights under Article 8 of the Convention. The respondent’s alleged breaches of Article 8 are set in paragraph 82 in these terms:
“[82.] What Article 8 required was a speedy and effective investigation into the allegations. PARTICULARS OF BREACH Substantive obligations The Council (i) The decision to convene an ICPC before the allegations had been the subject of a full and proper multi-disciplinary s.47 assessment was unlawful in a public law sense and incapable of justification. (ii) It was neither in accordance with the law nor necessary in a democratic society by reason of any of the potential savings in Article 8(2). In particular, Rudi’s health and welfare required appropriate educational provision to meet his special educational needs and understanding and support to the stressed parents of a poorly child rather than coercive steps based upon the deliberately false “dead by 40” claim and other un-investigated allegations accusing the 1st claimant mother of a psychiatric illness and both parents of emotional abuse. (iii) In the absence of a competently conducted s.47 assessment which concluded that there was reasonable cause to suspect that Rudi had or was likely to suffer significant harm by his parents there was no legitimate basis to conclude that an ICPC and Child Protection Plan was needed to address what was in reality an educational and medical dispute which did not embrace wider child protection concerns. (iv) Unsubstantiated allegations that the parents were guilty of emotional abuse or educational neglect against a background of conflict over Rudi’s special educational needs and uncertainty over the cause of his pain and certain diagnosis within the medical team was not a proper basis for the imposition of an ICPC or Child Protection Plan. (v) In the premises the Council failed to strike a fair balance between the competing interests of the claimants’ individual rights and the positive obligation in the second paragraph of Article 8 to protect Rudi from harm. West Rise Primary School (vi) The allegation at paragraphs 7b, 47,49,51, 58,61 and 74 made by Mike Fairclough and adopted by Laura Warren and or other members of staff and then GOSH was untrue and represented a gross misrepresentation of the background to the initial flawed diagnosis as set out at paragraph 31e.-31f. above. (vii) Nowhere on the school records has this allegation been recorded. Procedural obligations The Council (viii) The Council failed to follow the processes in the statutory guidance in Working Together as the decision on 13 December 2019 to convene the ICPC in the absence of a completed s.47 assessment has been conceded to be unlawful. (ix) There was no urgency on the facts to justify any procedural unfairness. (x) In the premises there was a violation of Article 8 process rights.”
PARTICULARS OF BREACH Substantive obligations The Council West Rise Primary School Procedural obligations

The Council

[61]The respondent makes the point that the allegations at paragraph 82(i) to (ii) are the same allegations which were made in the judicial review claim. In particular, the allegation that the first appellant had said the third appellant would be “dead by 40” is the same allegation that was made under the heading 16/12/2019 in section 9 of the judicial review claim form, and it was that allegation which was said to trigger the events which led to the respondent deciding to convene the Initial Child Protection Conference. Then, at paragraph 82(vii), the appellants have relied on the respondent’s concession in the judicial review claim to support the allegations in a new claim against the respondent, in circumstances where, before the judicial review claim was settled, they had failed to mention that any such damages claim would be pursued. In addition to that, the allegations at 82(iii) to (x) all relate to the respondent’s decision to convene an Initial Child Protection Conference, and implement a Child Protection Plan. These are the very same matters which formed the subject matter of the judicial review claim. The appellants maintain that they may be the same events, but they give rise to different causes of action, which they should be permitted to pursue.[62]Paragraphs 83 to 85 then set out the allegations of misfeasance in public office (even though there was no such claim included in the claim form): “Misfeasance in public office [83.] Mike Fairclough as the headmaster of a maintained primary school was a public officer exercising public law obligations under the education legislation. [84.] By reason of the matters pleaded at paragraphs 47-49 where he falsely claimed that the 1st claimant had repeatedly stated that Rudi was terminally ill (in his earshot) and would be dead by 40 Mike Fairclough, Mike Fairclough: [a.] exercised and abused the power vested him as the headteacher responsible for Rudi’s safety and educational welfare; [b.] either:(i) knew that he was abusing his public power or authority, or(ii) was recklessly indifferent as to the limits or restraints upon his power as headteacher; [c.] and acted or omitted to act: (i) with the intention of harming the 1st and/or 2nd claimant (“targeted malice”) or (ii) with the knowledge of the probability of harming them, or(iii) with a conscious and reckless indifference to the probability of harming the 1st and/or 2nd claimant and/or Rudi. [85.] This is not an obviously baseless claim. Had the 1st claimant made these statements: [a.] the headteacher and GOSH would have acted far sooner that 5 and 6 December 2019; [b.] there would be entries in the school records; and [c.] the parents would have been confronted and told that making these statements were abusive; [d.] they cannot have been by bureaucratic error or genuine mistake or incompetence; [e.] the 1st (nor the 2nd claimant) did not make the statements claimed by Mike Fairclough (and by adoption Laura Warren).” [85.] This is not an obviously baseless claim. Had the 1st claimant made these statements:

[b.] there would be entries in the school records; and

[63]This claim for misfeasance in public office is therefore also founded on what it is alleged that Mr Fairclough, the headteacher of West Rise Primary School, said the first appellant had said, which had given rise to the respondent’s involvement in December 2019, the decisions they took to convene an Initial Child Protection Conference, and the implementation of a Child Protection Plan, which was the subject matter of the judicial review claim.[64]Then, in relation to causation, paragraph 86 alleges:
“[86.] The said misfeasant statements / acts and substantive and procedural breaches of Article 8 have caused each of the claimants non-pecuniary loss and the 1st and 2nd claimant pecuniary loss.”
[65]Further particulars in relation to causation, and loss and damage are alleged at paragraphs 87 to 94. Paragraph 95 alleged that the claim is not an abuse of process and, at paragraph 96, that the appellants would “therefore be entitled to (at least) declaratory relief and perhaps a modest sum by way of just satisfaction”.[66]The prayer for relief identifies the appellants’ claim in these terms:(1) damages by way of just satisfaction under the Human Rights Act 1998;(2) damages at common law for misfeasance to include aggravated damages;(3) declarations that the Claimants’ Article 8 rights were unjustifiable breached; and(4) interest pursuant to section 35A Senior Courts Act 1981.[67]The respondent acknowledged service on 12 October 2022 and indicated that it intended to defend all the claim. Shortly after that the respondent applied to strike out the claim. I now turn to the various applications which were before the judge. The applications before the Judge The respondent’s strike out application

The applications before the Judge

[68]By an application notice dated 28 October 2022, the respondent applied for an order striking out the claim form and particulars of claim “as an abuse of the court’s process under CPR 3.4(2)(b) and the rule in Henderson v Henderson”.[69]Section 10 of the form sets out that, in support of its application, the respondent would be relying on the witness statement of Gareth Jones dated 28 October 2022, the statement of case and the evidence in box 10. On the application form the respondent said this, amongst other things:
“this is the third claim brought by the first and second claimants arising out of the same actual or alleged events. In particular (i) the allegation that, on 24.11.19 and 4.12.19, the headteacher of West Rise Junior School, Mike Fairclough, made false allegations against the First Claimant; (ii) the defendant’s decision of 13.12.19 to convene an Initial Child Protection Conference for their son, the Third Claimant; and (iii) the decision of 23.1.20 to implement a Child Protection Plan for the Third Claimant.”
[70]The application notice then set out the details of the earlier claims brought against the respondent, and identified that the allegations now made could and should have been made in the judicial review claim.[71]Mr Jones’ evidence set out the chronology of the earlier claims and then explained that, in relation to the consent order sealed by the court on 26 November 2020: “[42.] I understood that to be the end of the matter as did my client, the Council, which is why they approved the settlement. Had my client known that the claimants would then claim damages on the basis that that decision breached their Article 8 rights and/or bring a new claim for misfeasance in public office, it is unlikely they would have instructed me to settle their judicial review, even if I had advised them to. In particular, it is very unlikely that the client would have agreed to settle on the terms eventually approved by the Court, including an acknowledgment that the decision of the 13December 2019 was unlawful, if they had known that further litigation would ensue. The clear understanding of both myself and the Council was that the judicial review was the end, not the start of satellite litigation”.[72]Mr Jones then went on to deal with the appellants’ solicitors’ email dated 7 December 2020 which sought a limitation moratorium of four months, to enable them to review relevant records and draft a letter before action. Mr Jones agreed to the moratorium requested by the appellants. In his witness statement he said he was dismayed to receive this request, but did not pay much attention to it because “such claims rarely become effective and are often issued to avoid the expiry of the limitation period, and rarely proceed further”. Mr Jones then said that:
“he was of the view that once the claimants had reviewed the records, they would come to the conclusion that a human rights claim was doomed to fail. It therefore seemed prudent to agree to a moratorium rather than risk a human rights claim being issued which would then ultimately be withdrawn.”
He said that he agreed to a further moratorium because he “was hopeful that any response to a letter before action would dissuade the claimants from pursuing a human rights claim so agreed to an extension of time with that in mind”.[73]The appellants’ evidence in answer to the respondent’s strike out application was contained in a witness statement from Oliver Studdert dated 4 August 2023 (and therefore served over a year later). Mr Studdert explained the following in relation to the consent[74]Then, by an application notice dated 7 November 2022, the appellants applied for an order that the court:
“(1) amend the claim form to include a claim for misfeasance in public office; (2) add the Governing Body of West Rise Junior School as a second defendant; and (3) extend the deadline for service of defence”
. This application was supported by the witness statement of Oliver Studdert dated 7 November 2022. This witness statement explained that: “[4.] The claimants bring claims under the Human Rights Act 1998 for breaches of their Article 8 rights, arising out of child protection measures by the defendant in respect of Rudi Archibald, the third claimant… [6.] Judicial review proceedings in relation to these events were brought by the claimants on 28 April 2020 and settled by way of consent order on 25 November 2020. The claimants notified the defendants of their intention to bring a further claim under the Human Rights Act 1998 for breach of their Article 8 rights on 7 December 2020.” (underlining added)[75]Mr Studdert’s witness statement therefore says, in terms, that the judicial review claim related to the events to which the second county court claim relates. On the appellants’ own evidence they arise out of the very same events and therefore the very same subject matter.[76]The amended claim form is dated 22 November 2022 and the appellants sought to add by amendment the Governors of West Rise Junior School, Chaffinch Road, Langney, Eastbourne as the second defendant, together with the following claim:
“The First and Second Claimants also seek damages for the tort of misfeasance in public office against the Governing Body of West Rise Junior School for the abuse of power by the headteacher and special educational needs co-ordinator of the school between October 2018 and the date of the referral to the First Defendant in December 2019 and the subsequent meeting/s in the child protection process. The First and Second Claimants also seek interest (pursuant to section 69 of the County Courts Act 1984) and costs.”
[77]The value of the damages claim remained as being “more than £25,000”. No letter before claim was, as far as I can tell, sent by the appellants to the Governors of West Rise Junior School.[78]At or about the same time a document entitled “Amended Particulars of Claim” was produced, also signed by Mr Bowen KC and still dated 30 September 2022. In correspondence with the court the appellants’ solicitors explained that, in relation to this document:
“the content of the Particulars has not been amended. The only changes to the amended Particulars is that the proposed second defendant has been added to the head note and we have added the word “amended” before “Particulars of Claim”
. The substance of the Particulars remains the same”.[79]During the course of 2023 the applications came before the county court for the purposes of listing a hearing. They were originally listed for hearing in January 2024 before a District Judge, but that hearing was then adjourned due to insufficient court time. The matter was then listed before HHJ Simkpiss, the Designated Civil Judge, on 5 June 2024. That date was fixed for the convenience of counsel, who both filed skeleton arguments in advance of the hearing.

The appellants’ second amendment application

[80]One week before the hearing the appellants made a further application. By an application notice dated 29 May 2024 they applied for an order that the claim form be amended to include a claim for misfeasance in public office against the respondent. This application was supported by the evidence in Box 10 of the form which explained, amongst other things, that the amendment was sought because “the local authority has confirmed that it does accept it is vicariously liable for the actions of Mike Fairclough when he was acting as Headteacher of West Rise Junior School”. The appellants did not serve a draft amended claim form, but set out the proposed terms of the amendment in an order attached to the application notice.

The judgment dated 7 August 2024

[81]The hearing took place before the judge on 5 June 2024.[82]Following the hearing, Mr Bowen KC, counsel for the appellants, filed further written submissions with the judge entitled “post hearing note”, to which the respondent had to respond. The judge handed down judgment on 7 August 2024.[83]The judge, having explained the relevant background and facts, turned to the law in relation to abuse of process and the rule in Henderson v Henderson, which he dealt with at paragraphs 21 to 31 of his judgment. Further, the judge had all the correct principles well in mind including, for example, that “it is not therefore the position that just because a claim could have been raised in earlier proceeding it should have been and therefore the subsequent claim is an abuse” (paragraph 27). In any event, the appellants do not challenge the judge’s analysis of the law. Rather, they take issue with the way he applied it to the facts of this case.[84]The judge referred to the respondent’s strike out application at paragraph 32, and summarised counsel’s arguments at paragraphs 32 to 36.[85]The judge explained at paragraph 37 that he was satisfied that the proceedings were an abuse of process for the following reasons:
“[a.] The claim under article 8 (and the misfeasance claim if added by amendment) arise out of exactly the same events that gave rise to the JR proceedings and both involved an allegation that Mr. Fairclough and Dr. Atkinson had made false claims about what HA had told the school. These “gross misrepresentations” were alleged to have been made deliberately or recklessly. [b.] [Mr and Mrs Archibald] and their legal representatives believed that there had been breaches of article 8 and misfeasance on the part of Mr. Fairclough at the time of the JR proceedings but made no attempt to add a claim at that stage. [c.] Mr. Studdert, the Claimants’ solicitor in both the JR proceedings and these, explained the reason why no claim had been made earlier. He said “there were good reasons for not seeking damages at that stage and waiting either for the defendant to settle or for the court to quash the decisions challenged”
. He went on to say that the Claimants did not know how long the procedure (i.e. the JR proceedings) would take nor which breaches would be upheld by the court. [d.] Unlike Johnson v Gore Wood (where it had always been made clear to the defendants that Mr. Johnson intended to make a personal claim and the defendants to the original action could have asked for a term precluding that in the consent order but didn’t) the Claimants did understand that they had article 8 and misfeasance claims and either weren’t interested in recovering damages as the focus was on quashing the decisions, or decided that they would get the JR decision “in the bag” and then move on to the damages claim. Either way they did nothing to inform the Defendants of their intention to bring the claim which they intimated only 2 weeks after the consent order. In Johnson v Gore WoodLord Millett [this was in fact Sir Anthony Clarke MR in Stuart v Goldberg Linde at [101]] observed:
“101. I only add by way of postscript that litigants and their advisers should heed the points made by this court in the Aldi Stores Ltd. case and underlined here that the approach of the CPR is to require cards to be put on the table in cases of this kind or run the risk of a second action being held to be an abuse of the process”
. A sentiment echoed by Sedley LJ in Stuart v Goldberg [2008] 1 WLR 823. As Mr. Bowen KC points out in Henley v Bloom, this is not determinative and there is no duty to warn the other side of a potential new claim. It is however one of the factors to be taken into consideration in looking at all the circumstances and, in the present case, carries more weight than it did in Henley v Bloom. [e.] By bringing these claims the Claimants are “unjustly harassing” the Defendant and West Rise by having a second bite of the cherry. Mr. Jones, solicitor for the Defendant, says that if the Defendant had known that the Claimants were intending to bring further claims under article 8 or for misfeasance they would have been unlikely to agree the settlement they did. There may have been a number of reasons why they agreed to settle but the consent order was agreed against the background that the Claimants’ expressed objective to them and to the court was that the claim was only not academic because unless the decisions were quashed this would have an influence in Scotland. [f.] This is in fact the third claim brought by various combinations of the Claimants against the Defendant arising out of the same events. [g.] The public interest is firmly on the side of resolving proceedings arising out of the same facts in one set of proceedings and the Claimants’ approach to this litigation is not within the spirit of modern litigation resolution. The courts have limited resources and it is in the public interest that they are used efficiently so long as that is compatible with dispensing justice. [h.] I am not persuaded that there are any special circumstances which would prevent the court striking out the claim as an abuse.” “101. I only add by way of postscript that litigants and their advisers should heed the points made by this court in the Aldi Stores Ltd. case and underlined here that the approach of the CPR is to require cards to be put on the table in cases of this kind or run the risk of a second action being held to be an abuse of the process”.[86]Then at paragraph 38 the judge explained why he did not accept the points made by Mr Bowen KC, on behalf of the appellants, as to why the claim should not be struck out. The judge said he would “deal with the most relevant insofar as I have not already done so above” and continued as follows:
“[a.] The parties in the JR proceedings and this claim are not the same. The children are added as Claimants and if I accede to the Claimant’s application then a new Defendant will be added. In the first place, I just consider the strike out application by the Defendant as the only defendant at this stage and therefore the only relevant party additions are Claimants. This claim is clearly being driven by [the first and second claimants/Mr and Mrs Archibald]] and the original claim was brought to remedy what they perceived was an injustice to the family as a whole. This is therefore well within the category of cases contemplated by Popplewell LJ in Koza. There is support for this proposition from Davis LJ in BA and others v The Secretary of State for the Home Department [2012] EWCA Civ 944. [b.] He refers to Wigram V.C.’s judgment in Henderson v Henderson and his statement that, save in special circumstances, “the court … will not … permit the same parties to open the same subject of litigation in respect of the matter which might have been brought … but which was not brought forward only because they have, from negligence, inadvertence,, or even accident, omitted part of their case”
. He says that there is no suggestion of negligence, inadvertence or accident in this case. I’m afraid I don’t see how that helps him. The more modern interpretations of the rule are what the court should follow and I see nothing in these cases to suggest that these factors must be present before there is an abuse of process. A deliberate decision not to include the new claim may very well give far stronger grounds for finding an abuse. [c.] He says that I should take note of the fact that damages is only one of the remedies for breach of article 8. The Claimants have had their remedy from the consent order and the agreement of the Defendant that the decisions are quashed. Apart from the damages claim a declaration would add nothing. [d.] Mr. Bowen KC placed much reliance on Henley v Bloom. I agree with him to the extent that having been overturned by a strong Court of Appeal in relation to a similar point I should remind myself of the points on which I was overruled and avoid making the same error. Henley v Bloom was a very different case and each case turns on its own facts and circumstances. That is what Lord Bingham means when he says that there has to be a “broad merits based judgment” taking account of all the facts in order to decide if the proceedings are abusive. [e.] In that case the original proceedings were a possession claim and there was no counterclaim. The defendant’s defence alleged that he had carried out improvements to the flat. The proceedings were settled with the landlord agreeing to pay compensation for the improvements and a possession order was made. After he had given up possession and been paid the compensation he brought proceedings for damages for breach of the landlord’s repairing covenant. Other relevant factors set out in Lord Neuberger MR’s judgment were: the claimant did not realise he had a dilapidations claim when he settled; he had not brought a claim but was defending one; it was conceded by the landlord’s counsel that had the possession claim gone to trial and the landlord had lost there would have been nothing she could have done if the defendant had subsequently brought the new claim. The claim was not therefore abusive.”[87]At paragraph 39

the judge concluded as follows:

“Mr. Bowen KC refers to a passage where Lord Neuberger emphasises that the claim to dilapidations raised a different cause of action to the ones that arose in the possession proceedings. Again, the facts of the present case are very different. In Henley v Bloom the causes of action were “chalk and cheese”
. There is no common ground between a claim for compensation for tenant improvements and a claim for damages for breach of the landlord’s repairing covenant. The facts are very distinct. Here the facts are to a significant extent identical. Nor is there anything in the concession made by the landlady’s counsel. If the JR proceedings had gone to trial and failed then there would be no distinction between the strike out arguments that would then be raised and those now being raised. If the Claimants had failed in the JR proceedings there would be an even stronger case of abuse of process.”[88]The judge then turned to the appellants’ application to amend the claim to add misfeasance in public office against the respondent. The judge held that it failed in the light of his decision to strike out the claim (paragraph 40). Next, the judge turned to the issue of whether Mr Fairclough was a public officer and, having considered the relevant law, determined that it was not reasonably arguable that the Governing Body of West Rise Junior School were liable for the tort of misfeasance in public office because of the actions of the headmaster (paragraph 46). The judge referred to R v Mitchell [2014] EWCA Crim 318, [2014] 2 Cr App R 2 and Brent London Borough Council v Davies [2018] EWHC 2214 (Ch), and expressed the reasons for his conclusion that the tort of misfeasance in public office was not reasonably arguable against the Governing Body of West Rise Junior School in these terms:
“[45.] At the hearing Mr. Bowen KC submitted that a headmaster would be a public officer when he or she is “deliberately manipulating the safeguarding processes”
. He expanded on this in the later note and said that the headmaster was a public officer because he was exercising his public duties of safeguarding and reporting to the local authority social services department, This is a proposition with which I fundamentally disagree. It fails to address Sir Brian Leveson’s distinction [in R v Mitchell] between general duties and the actual duties of the employee or officer in the context in which the issue arises. In this case the headmaster has duties to set up safeguarding protocols and systems in order to protect the children at the school. What he was doing in this case was not exercising these duties but doing what all teachers and employees of schools are instructed to do, which is to inform the local authority immediately if they have concerns about a child’s welfare.”[89]As mentioned above, the judge also held that, as the Governing Body of West Rise Junior School were parties to the judicial review claim, he would also have refused the application to amend to add them as a party on the ground that it would be an abuse of process to do so under the rule in Henderson v Henderson (paragraph 47).

The appeal

[90]On the hearing of an appeal the appeal court will allow an appeal where the decision of the lower court was(a) wrong; or(b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court: see CPR Part 52.21(3).[91]The first three grounds of appeal relate to the judge’s decision to strike out the claim as an abuse of process under the rule in Henderson v Henderson. I shall take these three grounds first, and deal with them together as they overlap.[92]The respondent’s strike out application was made under CPR Part 3.4(2)(b). There was no dispute between the parties that the law is encapsulated in Johnson v Gore Wood & Co (a firm) [2002] 1 WLR 1, per Lord Bingham of Cornhill at 31A to 31F: “… Henderson v Henderson [(1843) 2 Hare 100] abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not… While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule in my view has a valuable part to play in protecting the interests of justice”.[93]Further, on an appeal against a judge’s decision applying these principles in relation to abuse of process, the approach of this court is set out in Stuart v Goldberg Linde [2008] 1 WLR 823, CA at [81] where Sir Anthony Clarke MR said this:
“I agree with Lloyd LJ that the decision on the question whether a second action is an abuse of process is not the exercise of a discretion. However, although the court in the Aldi Stores Ltd case [2008] 1 WLR 748 said that there is only one answer to the question, that statement must be read subject to the important statement of principle set out by Thomas LJ at para 16 as follows: “In considering the approach to be taken by this court to the decision of the judge... It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. Nonetheless an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors; see the discussion in Assicurazioni Generali v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642, [2003]1 WLR 577 and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd [2007] EWCA Civ 101 at [35]. The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him...”
I agree with that analysis, subject only to this. If the judge reached a conclusion that was plainly wrong, it would be the duty of the appeal court to interfere. I feel sure that in referring to the possibility of a judge might come to a conclusion that was impermissible or not open to him Thomas LJ intended to include the case where the judge is plainly wrong. In any event, I am firmly of the view that it should be included.” “In considering the approach to be taken by this court to the decision of the judge... It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. Nonetheless an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors; see the discussion in Assicurazioni Generali v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642, [2003]1 WLR 577 and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd [2007] EWCA Civ 101 at [35]. The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him...”

The parties’ submissions: Henderson v Henderson

[94]The parties lodged detailed skeleton arguments in advance of the appeal which they supplemented with oral submissions at the hearing.[95]The appellants submit that the judge failed to take twelve specific factors into account “when striking the Johnson v Good Wood balance between the private interests of [the appellants] and the public interests of [the council] and the court”. Each of these factors (which I identify by reference to the heading used in Mr Bowen KC’s skeleton argument) are set out below, together with the respondent’s submissions in answer. There were, in fact, thirteen factors referred to in the appellants’ skeleton argument.[96]First, a “knowledge of the claims”. The appellants in their skeleton argument submit that the judge was wrong to find that the first and second appellants understood they had damages claims for breach of Article 8 and misfeasance in public office, but chose not to pursue them (paragraph 37(d) of the judgment). In his oral submissions, Mr Bowen KC for the appellants took a different stance and accepted that the appellants knew about a damages claim (which is referred to in section 7 of the judicial review claim form), but submitted that the appellants had no duty to warn the respondent about the damages claim they intended to pursue.[97]Mr Dennis, for the respondent, submits the judge had ample evidence before him to make findings that the appellants knew and understood they had Article 8 and misfeasance claims, but chose not to pursue them in the judicial review claim, and did not inform the respondent that they had any intention of pursuing them prior to settling the judicial review claim. Further, the evidence before the judge, contained in the appellants’ solicitor’s witness statement, was that the appellants chose to “wait” for the judicial review claim to be determined before pursing any damages claims for breach of Article 8 and/or misfeasance against the respondent, and there was no justification for this.[98]Second, “the facts upon which [the judicial review claim] and these claims for damages turned were not the same”. The appellants submit that, even if the second county court claim arises out of the same events as the judicial review claim, that does not render a “follow-on” action arising out of those same events abusive if, as was the situation in this case, the facts necessary to establish the causes of action are different. The respondent submits that, even if the facts of the judicial review claim and the second county court claim are not identical, they arise out of the same events, or subject matter, and that is an abuse: see Johnson v Gore Wood at 32H, per Lord Bingham.[99]Third, “common background facts in follow on claims do not constitute an abuse of process”. Fourth, “no such general rule”. The appellants submit that, even if the facts were the same, the judge was wrong to create, and apply, a general rule that, if different causes of action arise from the same set of facts, they should (absent special reason) be brought before the same court at the same time in the same proceedings. The respondent submits that these arguments repeat the appellants’ submission advanced under the first and second headings.[100]Fifth, “that the damages claims in this case were not suitable for adjudication within a judicial review and if they had been brought in the judicial review would have led to a transfer out of the administrative court”. The appellants submit the damages claims for breach of Article 8 and misfeasance in public office were unsuitable for determination in the context of the judicial review claim in the Administrative Court. This is because directions would have been given for disclosure and cross-examination which would have made the judicial review claim for more expensive and complex and the damages claim would inevitably have been transferred to the county court. The appellants referred to The Administrative Court: Judicial Review Guide 2025 at paragraph 12.8.4, together with R (Nazem Fayad) v Secretary of State for the Home Department [2018] EWCA Civ 54, at [44]-[47] and [53-56], per Singh LJ and R (ZA (Pakistan)) v Secretary of State for the Home Department [2020] EWCA Civ 146, at [68] and [69], per Dingemans LJ. Further, at the hearing Mr Bowen KC for the appellants submitted that, by reason of section 31(4)(a) of the Senior Courts Act 1981, it was not possible for the appellants to pursue a claim for misfeasance in public office at the same time as the judicial review claim. This is because it did not arise “from any matter to which the application relates”.[101]The respondent submits that the ability to include the damages claims as part of the judicial review claim were material factors which the judge did take into account: see paragraph 36 of the judgment. The claim for damages for breach of Article 8 could and should have been brought in the context of the judicial review claim: see, for example, Goldsmith IBS Ltd v Secretary of State for the Home Office Department [2016] EWHC 840 (QB), Silber J at [24], [28], [33] and [34]. Further, there is nothing in section 31(4)(a) of the Senior Courts Act 1981 which precluded the appellants, on the facts of this case, from bringing a claim for damages for breach of Article 8 or for misfeasance in public office in the judicial review claim: see, for example, R (Jollah) v Secretary of State for Home Department [2017] EWHC 330, Lewis J at [4] and [5].[102]Sixth, “no disclosure/claimants well advised to pursue only the process challenges in the judicial review”. The appellants submit that, following the settlement of the judicial review claim, disclosure was required in order to formulate their damages claim, and this is supported by the respondent solicitor’s approach in correspondence as he agreed to a moratorium to the limitation period prior to the issue of the claim form. Further, there is no abuse of process if, at the time of earlier proceedings, the appellants did not have all the information necessary to bring their claim: see Civil Procedure (2026), Volume 1 at paragraphs 3.4.6 and 3.4.7[103]The respondent submits, amongst other things, that there is no evidence to support this contention. The appellants have never identified any material information that they became aware of after the judicial review claim was settled and without which they could not have made the allegations in the second county court claim, and commenced that action. Rather, the appellants had all of the information they needed to bring their claims for breach of Article 8 and misfeasance in public office in the judicial review claim: see paragraph 10 of the judgment. As for the respondent’s solicitor agreement to the appellants’ solicitor’s request dated 7 December 2020 for a moratorium in relation to limitation, the respondent’s solicitor explained what he did, and why he did it in his witness statement: see Mr Jones’ witness statement dated 28 October 2022. That evidence, which was not challenged, was accepted by the judge (paragraph 37(e)). In addition to that, the appellants’ claim for damages for breach of Article 8 was only set out in full for the first time in their solicitors’ letter before claim dated 13 May 2021 (and no claim for misfeasance in public office was included in the letter before claim). The response to that letter was that the appellants’ proposed claim for damages for breach of Article 8 was an abuse of process.[104]Seventh, “proceedings in Scotland were ongoing”. The appellants submit that the judge failed to take into account that the “matters remained fluid in Scotland during the currency of the claim”, and that the proceedings in Scotland were ongoing. The respondent submits that the judge did take this into account: see paragraphs 14 and 37(e) of his judgment.[105]Eighth, “main aim was to quash child protection decisions and achieve an end to social work involvement in their family life”. The appellants submit that, although common law damages were referenced in section 7 of the judicial review claim form, and there was “passing reference to procedural violations of Article 8”, these matters were not central “to the main agenda of persuading a court to quash the decision taken on 13 December 2019 to convene the ICPC”. The respondent submits that the judge did take these matters into account and this was one explanation provided by the appellants as to why they did not bring their damages claims until after the judicial review claim had been settled: see paragraph 37(d) of the judgment. In any event, the subject matter of the judicial review claim was the same as the second county court claim and, whatever the “main aim” of the judicial review claim, the second county court claim was and remained an abuse of process.[106]Ninth, “that [the first and second appellants] were accused of abusing their own child”. The appellants submit that “the whole family faced the coercive power of the state and were trying via [the judicial review claim] to correct the record whilst what they allege was the (incorrect) information was still being relied upon in the Scottish proceedings”. The respondent’s submit the judge did take these matters into account: see the paragraphs 6 to 8 and 37(e) of the judgment.[107]Tenth, “no duty to assist/warn the [respondent/West Rise Junior School]”. The appellants submit that this is not a case where they kept a second claim against the respondent “up their sleeve” whilst pursuing the first claim and, even if at the time the judicial review claim was settled they had decided to sue in private law, they were under no duty to forewarn the respondent and/or the Governing Body of West Rise Junior School. The appellants also submit that they were not under any duty to exercise reasonable diligence to find out the facts relevant to whether they had, or might have, a claim: see Stuart v Goldberg Linde at 840E-F, per Lloyd LJ. The respondent submits that the judge did take into account that “there is no duty to warn the other side of a potential new claim”: see paragraph 37(d) of the judgment. Further, the judge was correct to hold that, if a party does nothing to inform the other party of their intention to bring a claim (which in this case the appellants were plainly aware of), that is “one of the factors to be taken into consideration in looking at all the circumstances and, in the present case, carries more weight than it did in Henley v Bloom”: see Stuart v Goldberg Linde at [101].[108]Eleventh, “the damages claim were not time barred”. The appellants submit the claim now made, but said to be an abuse of process, was brought within the limitation period for common law claims. The respondent submits that the judge did have regard to the limitation period, particularly as the appellants had requested a moratorium: see paragraph 18 of the judgment.[109]Twelfth, “there was no culpability in “suppressing” an intention to subsequently commence proceedings for damages for Article 8 violations/misfeasance”. The appellants submit that the judge should have given weight to the factor that they did not do anything “culpable” to mislead the respondent and/or the Governing Body of West Rise Junior School. The respondent submits this adds nothing to the appellants’ arguments under the first, or indeed tenth, heading.[110]Thirteenth, “disproportionate”. The appellants submit that this is case where, on balancing private and public interests (the right of vindication versus the needs for finality), the balance is plainly in favour of “allowing this serious case to go to trial”. The respondent submits that the appellants have failed to identify any error made by the judge in relation to the decision he reached which is of the kind that requires this court to intervene on appeal.[111]In relation to the second ground of appeal, the appellants submit that, when asked by Morris J as to why the claim for judicial review was not academic because the family had moved to Scotland, their failure to mention the potential damages claim for breach of Article 8 is a factor which was not of any weight in assessing whether the second county court claim was an abuse of process. The respondent submits that the appellants knew and understood that they had claims for damages for breach of Article 8 and misfeasance in public office when they were pursuing the judicial review claim. In that context, when they were asked by Morris J whether the claim for judicial review was academic, the court was told that this was not so as, unless the decisions were quashed, this would have an influence on the proceedings commenced in Scotland. The appellants did not inform the court, or the respondent, that they intended to pursue a claim for damages in respect of breach of Article 8 and for misfeasance in public office. In these circumstances the appellants could not, having settled the judicial review claim on terms that included a declaration that the respondent’s decision of 13 December 2019 to convene an Initial Child Protection Conference was unlawful, then seek to use that concession to recover damages from the respondent. Such conduct is and was unconscionable: see Johnson v Gore Wood at 61B-C, per Lord Millett.[112]In relation to the third ground of appeal, the appellants submit that the judge’s conclusion that the respondent and the Governing Body of West Rise Junior School were being unduly harassed in circumstances where the second county court claim was distinct from the judicial review claim, and neither party had yet “to meet the matters arising under the Article 8, negligence or misfeasance claim” was wrong. The respondent submits that the judge correctly applied the test identified in Johnson v Gore Wood and his conclusion was correct. The second county court claim, and the application to join the Governors of West Rise Junior School to the claim, all arose out of the same events as the judicial review claim, and also the matters alleged in the first county court claim, and the judge’s conclusion in this regard cannot be faulted.

Discussion: Henderson v Henderson

[113]The judge was required to carry out a broad merits-based judgment which took account of the public and private interests involved, and also took into account all the facts of the case, focussing on the crucial question whether, in all the circumstances, the appellants were misusing or abusing the process of the court by seeking to raise before it in the second county court claim damages claims for breach of Article 8 and misfeasance in public office which could have been raised before: see Johnson v Gore Wood at 31D-E, per Lord Bingham.[114]The issue on the first three grounds of appeal is whether in deciding that the second county court claim was an abuse of process the judge took into account immaterial factors, omitted to take into account material factors, erred in principle or came to a conclusion which was impermissible, not open to him or plainly wrong.[115]In dealing with the strike out application the judge considered the damages claims against the respondent for breach of Article 8 and for misfeasance in public office, even though the claim for misfeasance in public office was not included in the claim form and was the subject of the second amendment application. He therefore approached the substance of the allegations against the respondent (which was entirely sensible in the circumstances), and I shall take the same approach.[116]I will deal with the points or factors identified by the appellants in the first three grounds of appeal and, where there is overlap, I have grouped the points/factors together. First ground of appeal: (1) Knowledge of the claims; (10) No duty to assist/warn; (11) There was no culpability in “suppressing” an intention to subsequently commence proceedings for damages for breach of Article 8 or misfeasance Second ground of appeal[117]On the hearing of the appeal Mr Bowen KC for the appellants accepted that, when the judicial review claim was issued on 28 April 2020, the appellants knew they had a damages claim. This, after all, had been included in section 7 of the claim form. In addition to that, section 9 of the judicial review claim form sets out the very same allegations in relation to a “malicious referral” and that the headteacher, Mr Fairclough, had made a false allegation that the first appellant had attended the school and said the third appellant had terminal cancer and would die aged 40, that had led (via GOSH) to the involvement of the respondent and the instigation of a section 47 assessment and an Initial Child Protection Conference. Further, the first and second appellants’ notice seeking renewal of their application for permission to apply for judicial review, together with their skeleton argument (settled by counsel) for the hearing of their claim in December 2020, specifically refer to breach of their Article 8 rights. The appellants therefore knew at the time of the judicial review proceedings, and before they were compromised, that they had damages claims for breach of Article 8 and misfeasance in public office. This finding was plainly open to the judge on the evidence before him, and it was clearly a highly material factor to take into account in determining the abuse argument.[118]Mr Bowen KC’s next point is that the appellants were under no duty to warn the respondent that they intended to pursue these damages claims against them. That is correct and the judge accepted that submission: paragraph 37(d) of the judgment. However, on the facts of this case, the difficulty with this submission is that, given the appellants knew of these claims, they could have disclosed them before Mr Justice Morris when he inquired as to whether the judicial review claim was academic as the family had moved to Scotland. They failed to do so. The only point they mentioned in answer to this question was that the claim was not academic as it would have a considerable effect on the outcome of proceedings commenced in Scotland.[119]The appellants did not alert the respondent to the fact they intended to pursue a damages claim against the respondent for breach of Article 8 or misfeasance in public office at any time before the consent order in relation to the judicial review claim was sealed by the court on 26 November 2020. Indeed, the appellants’ solicitor explained this was a deliberate decision because “there were very good reasons for not seeking damages at that stage and waiting either for the defendant to settle or for the court to quash the decisions challenged” (paragraph 28(b) of Mr Studdert’s witness statement dated 4 August 2023). The “very good reasons” are not adequately explained in Mr Studdert’s witness statement, and the appellants have failed to identify any evidence which came to light after 26 November 2020 which they were unaware of before that date, and was a material component of any claim for damages for breach of Article 8 or misfeasance in public office.[120]Accordingly waiting for the case to settle or for the court to quash the decisions challenged, was an unattractive stance for the appellants to take and, on the evidence, the judge found that the appellants did nothing to inform the defendants to the judicial review claim (the respondent and the Governing Body of West Rise Junior School) of their intention to bring the damages claim. The appellants only mentioned this for the first time two weeks after the consent order had been made. The judge correctly identified that this was a factor to be taken into consideration looking at all the circumstances (paragraph 37(d) of the judgment).[121]Further, the judge was entitled to take into account the evidence of the respondent’s solicitor as to the context in which the respondent had settled the judicial review claim and the respondent’s understanding that the claim was not academic because “unless the decisions were quashed this would have an influence in Scotland”: paragraph 37(e) of the judgment. Therefore, what the appellants had told Mr Justice Morris as to why the claim was not academic was plainly a material factor the judge was entitled to take into account in determining whether the second county court claim was an abuse of process. This is because, by failing to disclose to the respondent and the Governing Body of West Rise Junior School that they intended to pursue damages claims for breach of Article 8 and misfeasance in public office, the appellants were keeping these claims “up their sleeve” and there was no justification for that approach. This was particularly so when, given the way the judicial review claim form was formulated by the first and second appellants and the grounds for judicial review were then re-formulated by counsel, the clear impression the appellants gave to the defendants to the judicial review claim was that the claimants (the first and second appellants) did not intend to pursue any claim for damages that may have been available to them. (2). The facts of the judicial review claim & the second county court claim are not the same (3) Common background facts in “follow on claims” do not constitute an abuse of process (4). No such general rule[122]The law is clear: an important purpose of the rule in Henderson v Henderson is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter: see Johnson v Gore Wood at 32H, per Lord Bingham. The appellants’ claim for damages for breach of Article 8 and misfeasance in public office arises out of the same events, and therefore the same subject matter, as the judicial review claim. That is clear from the appellants’ own evidence and correspondence: see the appellants’ solicitors’ email to the respondent’s solicitor dated 7 December 2020 and paragraphs 4 to 6 of Oliver Studdert’s witness statement dated 7 November 2022 (set out above). The judge’s conclusions in this regard cannot be faulted: see paragraphs 36 and 37(a) of his judgment. There is therefore nothing in the second, third and fourth factors relied on by the appellants. (5). The damages claims were unsuitable for adjudication in the judicial review claim (6). The appellants’ required disclosure to formulate their damages claim after settlement of the judicial review claim[123]The appellants set out the facts relied on in support of their claim for judicial review at section 9 of the judicial review claim form. Given the facts identified, there was nothing procedurally, or indeed in section 31(4)(a) of the Senior Courts Act 1981, to prevent the appellants bringing their damages claim for breach of Article 8 and misfeasance in public office as part of their judicial review claim.[124]However, any such claim had to be properly pleaded. There was no evidence before the judge to show that the appellants could not plead any such damages claims in the judicial review claim, or that they lacked any evidence or material information which prevented them from pursuing these claims at this stage. Rather, if such damages claims had been pleaded and if, as the appellants contend, a lengthy procedure would have been involved to resolve them, then “the general practice of the court is to determine the judicial review claim, award the other remedy sought (if appropriate) and then transfer the claim either to the county court or to an appropriate division of the High Court to determine the question of damages”: see paragraph 12.8.4 of The Administrative Court: Judicial Review Guide 2025. There is no reason why the damages claims could not have been made in the judicial review claim and case managed as appropriate.[125]Therefore, on the evidence before the judge, he was entitled to conclude that there was no reason why the appellants “could not have brought the article 8 claim and damages claim in the JR Proceedings. They depended entirely on the same facts and if it required a longer hearing, or transfer to another tribunal, that could have been dealt with in those proceedings” (paragraph 36 of the judgment). Further, this was a factor that the judge took into account and he was correct to do so (paragraph 37(b) of the judgment). (7). Proceedings were on-going in Scotland[126]The judge did take into account that there were proceedings against the appellants in Scotland which were on-going, together with what the appellants had told Mr Justice Morris as to why the judicial review claim was not academic: paragraphs 14 and 37(e) of the judgment. (8). The main aim of the judicial review proceedings was to quash the child protection decisions (9). The first and second appellants were accused of abusing their own child

The judge did have these points well in mind:

[127]see paragraph 35 of the judgment. However, as the judge correctly identified, there was no reason why, when the appellants knew they had damages claims for breach of Article 8 and misfeasance in public office, those damages claims were not brought as part of the judicial review claim: see paragraph 36 of the judgment. That was a factor which, as set out above, the judge was correct to take into account. The appellants’ suggestion that the judge failed to take these matters into account is incorrect. (11). The damages claim was not time barred[128]The second county court claim, as issued, was a claim for damages for breach of Article 8. There was no claim on the face of the claim form for damages for misfeasance in public office. The limitation period for any claim for damages for violation of the appellants Article 8 rights was 12 months, and the judge had this limitation period well in mind: see paragraph 18 of the judgment. (13). Disproportionate[129]For the reasons identified above, the appellants have not identified any material factors the judge failed to take into account, or any immaterial factors that he took into account. In these circumstances there is no basis for arguing that his decision that the second county court claim should be struck out as an abuse of process is “disproportionate”.

Third ground of appeal

[130]This ground overlaps with grounds one and two. The short answer to this is that, as explained above, the allegations in the second county court claim, and indeed the first county court claim, arise out of the same events, and therefore the same subject matter, as the judicial review claim. The respondent, and the Governing Body of West Rise Junior School, were therefore being vexed, or harassed, in relation to the same matter a second time (and in the case of the respondent, a third time). This was not permissible, particularly given the circumstances in which the judicial review claim had been compromised, and the first and second appellants’ failure to disclose prior to that compromise taking effect that they intended to pursue their damages claims for breach of Article 8 and misfeasance in public office against the respondent and the Governing Body of West Rise Junior School. The judge’s conclusion was correct for the reasons he gave. Conclusion[131]This is a case with a lengthy factual background. The judge’s judgment is admirably succinct in his analysis of the factual and legal issues. The second county court claim arose out of exactly the same events as the judicial review claim, and the judge was correct to approach the applications before him on that basis. In order to determine whether the second county court claim was an abuse of process the judge applied the correct legal test, took into account all the material factors, did not take into account any immaterial factors, and reached a decision which was open to him on the facts. Further, the decision he reached was, in my view, one that was correct. This is not therefore a case where an appellate court can, or should, interfere with the judge’s decision to strike out the second county court claim as an abuse of process.[132]That conclusion is sufficient to dispose of this appeal.

The parties’ submissions: misfeasance in public office

[133]This ground of appeal is directed at the judge’s decision contained in paragraphs 45 and 46 of the judgment. As set out above, it only arises if the appellants’ appeal is allowed against the order striking out the claim as an abuse of process. However, as I have just explained, the judge was correct to strike out the claim as an abuse of process under the rule in Henderson v Henderson. There is therefore no claim form to be amended to add an additional claim for the tort of misfeasance in public office against an additional party, namely the Governing Body of West Rise Junior School. Further, and in any event, the respondent has accepted that it was vicariously liable for the alleged actions of Mr Fairclough when he was acting as the headteacher of West Rise Junior School (on the basis that he was employed by the respondent), so it is unclear what any claim against the Governing Body of West Rise Junior School would add to a claim against the respondent (see the respondent’s solicitors’ email dated 13 May 2024). Mr Dennis for the respondent submitted that there is no arguable claim against the respondent (or indeed the Governing Body of West Rise Junior School) based on the tort of misfeasance in public office.[134]I will nevertheless deal with the appellants’ submissions in relation to this ground of appeal briefly. Mr Bowen KC, for the appellants, submits that the judge’s approach to the law in relation to the tort of misfeasance in public office at paragraph 45 of his judgment contained a fundamental error. This is because, in order to determine whether a person is a public officer, there is a “general diffuse test” and it is “a broad concept”. Mr Bowen KC accepted that the starting point in relation to the law on this issue is Three Rivers District Council v Governor & Company of the Bank of England [2003] 2 AC 1, at 191B et seq, per Lord Steyn. The first ingredient of the tort is that the defendant must be a public officer and “It is the office in a relatively wide sense on which everything depends”: Three Rivers at 191B, per Lord Steyn. However, Mr Bowen KC submits that this wide approach, which is applicable to the tort of misfeasance in public office, does not correspond with the test identified in R v Mitchell which concerns the criminal offence of misconduct in public office, and the determination of who is a public officer in that context.[135]In R v Mitchell the court explained that the proper approach is to analyse the position of a particular employee or officer, and whether he or she was a public officer, by asking three questions:
“[16.] First, what is the position held? Second, what it the nature of the duties undertaken by the employee or officer in that position? Third, does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of that duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty? If the answer to this last question is “yes”, the relevant employee is acting as a public officer; if “no”, he or she is not acting as a public officer.”
[136]Mr Bowen KC submits that Mr Fairclough was, as the headteacher of West Rise Junior School, responsible for the entire safeguarding process at the school. This was a particular aspect of his office as the headteacher and, as a result, there is no doubt that he is a public officer within the “wide sense” identified by Lord Steyn in Three Rivers. Further, in the circumstances of this case, R v Mitchell was “not on point” but, even if R v Mitchell cannot be distinguished, then the criteria in R v Mitchell are satisfied and the answer to the third question identified in R v Mitchell is “Yes”. Mr Bowen KC submits this is a case where the appellants allege that the headteacher deliberately lied about what a mother had said about her child, that led to a “catastrophic” sequence of events, which included a strategy meeting being convened and an initial child protection conference, which the respondent had then conceded was unlawful in the judicial review claim. The appellants were, as members of the public, individuals who were directly affected by the headteacher’s actions and, in particular, his failure to comply with his statutory obligation to safeguard the welfare of children. Accordingly, the judge was wrong to conclude that the appellants had failed to allege a cause of action against the Governing Body of West Rise Junior School, or indeed the respondent, that the headteacher, Mr Fairclough was a public officer and, as a result, they were liable for the tort of misfeasance in public office.[137]The approach of Mr Bowen KC in relation to this issue is one that continues to evolve. It is to be noted that the argument he advanced orally is different to the argument set out in his skeleton argument for this appeal dated 24 January 2025. The argument advanced in the appellants’ skeleton argument is that “the judge erred in law in rejecting the argument that the guidance in R v Mitchell and Brent London Borough Council v Davies which supported the argument that he headteacher was a public officer. Properly understood the dicta supported [the appellants’] case” (paragraph 43). Paragraphs 44 to 54 of the skeleton argument then go on to refer extensively to R v Mitchell and how it should be applied to the facts of this case (see, for example, paragraph 47). Likewise, in the written submissions (entitled Post-Hearing Note) sent by Mr Bowen KC to the judge after the hearing, he submitted on behalf of the appellants that “the Mitchell tests are satisfied on these pleaded facts” and then identified the reasons for this (paragraph 15).[138]The argument that Mr Bowen KC therefore sought to advance orally on behalf of the appellants was a new approach, which did not feature in his skeleton argument on the appeal, or in his submissions to the judge.[139]The respondent’s starting point is that that the appellants should not be permitted to advance a new legal argument on appeal: see, for example, Pittalis v Grant [1989] QB 605, CA and Civil Procedure (2026), Vol 1 at para 52.21.1.1. This is because up until Mr Bowen KC made his submissions to this court on the appeal, the appellants had never sought to take issue that the law as stated in R v Mitchell (which concerns the criminal offence of misconduct in public office) was wrong, or that it should not be applied in the context of the tort of misfeasance in public office.[140]In any event, even if the appellants are permitted to run their new argument, the law in this area was carefully considered by Zacaroli J (as he then was) in Brent London Borough Council v Davies [2018] EWHC 2214 (Ch) at [644] to [649]. It was common ground between the parties in that case that the jurisprudence on the meaning of “public officer” in the context of a criminal offence was of assistance in determining its meaning in the context of the tort of misfeasance in public office (paragraph [648]). The court therefore applied, without issue, the three criteria identified by Sir Brian Leveson P in R v Mitchell to the tort of misfeasance in public office to determine whether a person was a public officer. Further, the only authority which identifies the criteria to determine whether a person is a public officer is set out in R v Mitchell, and there is no reason in principle why that meaning should be different depending on whether the issue is being determined in the context of a criminal offence or a tortious act. In addition to that, although the decision in Brent London Borough Council v Davies is a first instance decision, as a matter of precedent, this court should not to depart from that decision, unless there is a good reason to do so. The appellants have not identified any such good reason.[141]Then, as to the facts of this particular case, Mr Dennis for the respondent submitted that the appellants have failed in the amended particulars of claim to identify and allege any safeguarding duties imposed on the headteacher as an individual, as distinct from his employer, the respondent. The respondent therefore submits that the conclusion reached by the judge that Mr Fairclough, as the headteacher, was not a public officer, or exercising a power as a public officer was correct for the reasons he gave.

Discussion: misfeasance in public office

[142]The elements of the tort of misfeasance in public office are now well-established. Further, the question of whether a governor of a maintained school is a public officer was considered by Brent London Borough Council v Davies and, on the facts of that case, Zacaroli J concluded that the governors of the school were to be characterised as public officers for the purpose of the tort of misfeasance in public office. There is, in that case, a careful analysis of the law by reference to the relevant authorities, which includes the application of the test identified in R v Mitchell in order to determine whether a particular employee or officer was a public officer. I do not see why, in the context of this case, I should depart from the approach taken by the court in Brent London Borough Council v Davies. Mr Bowen KC did not identify any good reason, and I do not consider it justified by the different approach to the law identified in his oral submissions.[143]The next point is that the judge correctly cited R v Mitchell and Brent London Borough Council v Davies at paragraphs 41 to 43 of his judgment. Then, at paragraph 45, he set out Mr Bowen KC’s submissions for the appellant, and he then applied the test in R v Mitchell to determine whether Mr Fairclough, the headteacher, was a public officer for the purposes of the tort of misfeasance in public office.[144]The judge focussed on the duties the appellants alleged that the headteacher was exercising. He was correct to do so, for the reasons explained by Zacaroli J in Brent London Borough Council v Davies (by reference to R v Mitchell):
“[649.] The importance of focusing on the duties undertaken by the relevant person was explained at [17] [in R v Mitchell]. There was no doubt that the public had a significant interest in the discharge by the Trust of its duty to provide emergency health care. But to focus on the duties of the Trust would mean that every doctor, nurse or other employee of the Trust would be a public officer, which was not the case. Of particular relevance for the present case, he contrasted the position as regards the provision of education as follows: “Equally, the public has a significant interest in the discharge by an education authority of its duties to provide children with a safe environment in which to be educated … for an education authority it would mean that every teacher, classroom assistant or other employee at a school is a public officer. That is not correct”.”
[145]The amended particulars of claim fail to allege any powers which were exercised by Mr Fairclough, the headteacher, as a public officer. Paragraph 83 of the amended particulars of claim alleges in broad terms that he was “a public officer exercising public law obligations under education legislation”. There is reference to education legislation at paragraph 2 of the amended particulars of claim, but these are statutes which are alleged to give rise to responsibilities on the part of the respondent, as the local authority, rather than the headteacher. Further, section 11 of the Children Act 2004, which is referred to in the appellants’ skeleton argument, imposes duties on local authorities in England, NHS trusts, prison governors and other bodies listed in section 11(1). It does not impose any duty on a school headteacher as an individual and Mr Bowen KC was unable to identify any such additional duty for which Mr Fairclough was responsible.[146]I agree with the respondent that all the staff at West Rise Junior School, including the headteacher, had a duty to report any safeguarding concerns in relation to a child, and that duty is owed to the individual child. The fulfilment of that duty does not represent “one of the responsibilities of government such that the public have a significant interest in the discharge of that duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty”. In these circumstances, the judge was correct to conclude that Mr Fairclough, acting in his capacity as the headteacher, was not a public officer for the purposes of the tort of misfeasance in public office and there was no such claim against the Governing Body of West Rise Junior School based on his actions as the headteacher.[147]It was, to say the least, unsatisfactory that Mr Bowen KC was seeking to advance a new argument on appeal. Having listened to his submissions in full (and he devoted much of his time on the appeal to this ground), I do not think there is any substance in his new approach. This is because, at first instance, the law is very clearly set out in Three Rivers, R v Mitchell and Brent London Borough Council v Davies. Accordingly, the appellants should not be permitted to advance this new approach to the law on the appeal. In any event, for the reasons I have explained, the judge correctly applied the law to the facts of this case, and he was right to dismiss the appellants’ application to join the Governing Body of West Rise Junior School as a defendant to the claim, which was the first amendment application.

Conclusion

[148]The appeal is dismissed. _______________

order

“[27.] It is clear that the negotiations as reflected in the consent order did not deal with or purport to be in full and final settlement of all claims on behalf of the Archibald parents and children that were connected to the trauma caused by the treatment of the 3rd claimant (Rudi). [28.]. There are several important aspects to this: (a) Whilst it is correct that there was no claim for damages in the prayer there were, as set out above, … tangential references to violations of convention rights. These were in the context not of a retrospective claim for damages but the issues in the judicial review which revolved around the unfair process adopted by the defendant and the unlawful invocation of child protection issues, with all of the reputational harm to loving parents who were struggling with a vulnerable boy with significant medical needs. (b) There were very good reasons for not seeking damages at that stage and waiting either for the defendant to settle or for the court to quash the decisions challenged. (c) When the judicial review was issued Mr and Mrs Archibald had no way of knowing how long the process would take, the position was complicated by the move to Scotland in April 2020 and the transfer of child protection proceedings. They did not know the scope of the breaches they would succeed upon and had no way of calculating the loss until the judicial review claim was evidenced, determined or settled.” The appellants’ first amendment application

Cited in 1 later judgment