A AND B V SOMERSET COUNTY COUNCIL [2012] EWHC 2753

Child abuse compensation claims – pre action disclosure
FACTS:-
The Claimants were a brother and sister, who lived within the area for which the Defendant local authority was responsible. Its social services department had serious concerns, from 1998 onwards, about domestic violence between the Claimants’ parents and their exposure to it. Eventually the Claimants were received into the care of the Defendant. Criticisms were levelled at the Defendant’s handling of the case by the guardian in the care proceedings, who expressed the opinion that the local authority failed in their duty to protect the Claimants prior to removal. The judge who was hearing the care proceedings made an order that the guardian should have leave to release the papers to the Official Solicitor. Meanwhile, the Official Solicitor had been attempting to investigate a possible negligence claim. An application was made for pre action disclosure, but this was refused by the Master, on the grounds that he was not satisfied that the case had a real prospect of success.
JUDGEMENT:- 
Mr Justice Eady considered the provisions of CPR 31.16 and a number of cases:-

• Philip Rose v Lynx Express Ltd, Bridgepoint Capital (Nominees) Ltd [2004] EWCA Civ 447
  
• Black v Sumitomo Corporation [2003] 3 All ER 643,
  

Eady J said that in cases such as this, the whole point of an application for pre-trial disclosure was that the files should be scrutinised in order to determine when a competent local authority should have applied for removal of the relevant child or children. Until that point had been identified, it would not be possible to determine how much harm (if any) had been suffered thereafter. Nor, it follows, would it be possible to assess the extent to which that harm is additional and/or such as to merit, in itself, an award of damages. The Master recognised expressly that "significant harm was likely to be caused … as a result of the drunken and violent behaviour of their parents which they witnessed, it would appear, almost daily". That would, almost certainly, include harm incurred following the hypothetical breach. Accordingly, it seemed to Eady J that this was sufficient to give the case a real prospect of success. The Master was setting the bar too high and the appeal would be allowed.