B V READING BOROUGH COUNCIL (1) WOKINGHAM DISTRICT COUNCIL (2) THE CHIEF CONSTABLE OF THAMES VALLEY POLICE (3) [2007] EWCA Civ 1313
FACTS:-
There had initially been two Claimants in this action. The first was L and the second B, who was L’s father. They alleged misfeasance in public office, conspiracy to injure and negligence against the First and Second Defendants and the police. The claims arose out of investigations carried by local authority social workers and the police into allegations of sexual abuse said to have been inflicted on L by her father, B. The allegations were made by L’s mother, S when L was very young.
L had been born in 1987 and her parents had separated in June 1988, whereafter B saw L from time to time. In the early 1990’s S made allegations of sexual abuse against B, as a result of which L was interviewed twice by a social worker and a police officer. He was arrested but released without charge. Later he made an application for contact with L and in 1995 a family court judge found that B had not sexually abused L in any way. The judge also heavily criticised the methods used by the police and social services. This led In October 1996 to L going back to live with B.
B’s case was that as a result of the investigation, he lost his employment, developed clinical depression and other psychological illness and he also became an alcoholic because of the prolonged legal proceedings. He issued proceedings in 1998 along with L (for whom he was litigation friend).
L discontinued her claim in June 2006 so that by the time of the matter came before the Court of Appeal, the only remaining Claimant was B, the father.
In 1999, the police applied to strike out the claim against them. That application (to which the local authority was not a party) succeeded at first instance on the grounds that the police were entitled to witness immunity, but the appeal was allowed by the Court of Appeal. (See [2001] EWCA Civ 346). The Court of Appeal said that the misfeasance in public office and conspiracy to injure allegations were arguable. As to the duty of care, it was also held arguable that the police officer owed a duty of care to L, the daughter. However that decision was not binding as between B and the local authority.
However the House of Lords then gave out their decision in D v East Berkshire Community Health NHS Trust [2005] UKHL 23. The net result of that judgment was that whilst a duty of care might be owed to a child in these circumstances, no duty of care would be owed to the parent who suffered damage.
The First Judgment
L discontinued her claim in June 2006, but B continued his claim against the local authority and the police. An application was made by the local authority to strike out part of B’s claim for damages, insofar as they were based on the alleged vicarious liability of the local authorities for alleged breaches of duty said to be owed by a social worker. On the 12th October 2006, Keith J struck out those parts of B’s claim on the grounds that it was not just, fair and reasonable to hold that there was such a duty (following D).
B’s counsel applied for permission to appeal but that was refused. At that point it was open to the Claimant to appeal against the decision, but instead the Claimant decided to apply for permission to re-re-amend the particulars of claim in order to allege a breach or breaches of the direct duty of care already pleaded. That led to a second hearing and a second judgment.
The Second Judgment
This judgement arose out of a hearing that took place on the 13th December 2006. B had applied for permission to re-re-amend the particulars of claim.
The Claimant had pleaded in Paragraph 39 of the re-amended particulars of claim that in carrying out the interviews the local authority and the social worker were exercising a statutory function by reason of section 1(1) of the Child Care Act 1980. Paragraph 40 stated that the police officer was exercising the common law powers of a police officer and in such capacity owed a duty to L and the public as a whole to prevent the commission of a crime.
Paragraph 41 alleged that the various social workers allocated to the case owed duties to L and B to discharge their professional functions with the care which could be reasonably expected of a reasonably competent social worker. Paragraph 42 alleged that the local authority was vicariously liable for that breach of duty. Paragraph 44 described the duty alleged in paragraph 41 as the vicarious duty, and then together with paragraph 45 set out the content of the duty.
However there were no allegations in the re-amended particulars of claim that that the local authority at any stage assumed a responsibility to B, as opposed to L, where such an allegation was made in paragraph 47. As to the police, similar allegations were made against the police officer concerned in paragraph 48.
Allegations of breach of duty made against both the local authority and the police on the basis of vicarious liability were contained in paragraph 50, and allegations of breach of duty solely against the local authority, also based on vicarious liability, were contained in paragraph 51.
However there were no allegations in the re-amended particulars of claim that the police owed a direct duty to either B or L.
As for the local authority, paragraph 43 alleged that it owed both L and B a duty to take reasonable care under the Child Care Act 1980 and the Children Act 1989. Paragraph 46 alleged that the direct duty required the local authority to have adequate systems in place. The pleading did not allege any breach of the direct duty. That had been pointed out at the first hearing in October 2006 before Keith J but he declined to rule upon the issue until the breaches of duty had been pleaded.
Paragraphs 43 and 46 were retained. However a new Paragraph 51A was put in. This alleged that in breach of the direct duty pleaded in paragraph 46, the local authority had no reasonable or sufficient system to enable its employees to discharge their professional duties.
Causation was pleaded in paragraph 57. No distinction was drawn between the various causes of action.
The local authority resisted the application to re-re-amend the particulars of claim, on the basis that it was not arguable that it was owed a direct duty of care. There were then written submissions and Keith J gave a second judgment. He held that the imposition of such a duty did not create a conflict of interest of the kind which applied to social workers. It was in the interests of the parents just as much as the children that investigations were carried out competently by staff, who were properly managed and supervised. Keith J had not seen anything in the House of Lords judgment in D to suggest otherwise and therefore the Claimant would be given permission to re-re-amend his claim.
The local authority appealed against that order to the Court of Appeal. Their counsel pointed out that although D was a case of vicarious liability on its facts, it was plain that the House of Lord did not draw any distinction in the context of doctors and social workers between liability based on vicarious liability and direct liability.
HELD:-
Sir Anthony Clarke reiterated the main points of the majority of the House of Lord in the judgment in D v East Berkshire Community Health NHS Trust [2005] UKHL 23. Although D was a case of vicarious liability on the facts, it was plain from the judgment of Lord Nicholls that no distinction was drawn between vicarious liability and direct liability. Lord Nicholls had recognised that there might be cases of an assumption of responsibility or other exceptional cases, but he still stated the general rule in clear terms. Sir Anthony Clarke recognised that D was not binding authority for the proposition that the principles apply to cases of direct liability. However the dictum of Lord Nicholls appeared to support the local authority’s submission that no duty was arguably owed on the facts of this case.
Therefore the decision of Keith J in his second judgment of the 13th December 2006 was not correct. The Claimant had to establish a breach of duty of at least one social worker. It was immaterial whether the social worker’s breach of duty was some failing of his own or solely because he was inadequately instructed, managed or supervised. The conflict or potential conflict of interest or duty as between the interests of the child on the one hand and the suspected parent on the other existed in either case.
The decision of Keith J in his first judgment of the 12th October 2006 was correct in holding that the social workers owed no duty to the Claimant sounding in damages. It was not fair, just and reasonable to hold that the social worker owed an actionable duty to the Claimant in the first place.
Sir Anthony Clarke said that the Court of Appeal had reached the conclusion that on the alleged facts of the case, there was no distinction between the two types of alleged breach of duty (direct duty/duty based on vicarious liability). Therefore the appeal against the Keith J’s order granting permission to re-re-amend the claim would be allowed.
Keith J had struck out the allegations that supported the Claimant’s case on vicarious liability. However no application was made to the court to seek permission to appeal that order. Instead an application had been made to re-re-amend the Particulars of Claim and that led to the trial judge’s second judgment. The local authority then applied for permission to appeal that judgment and the papers came before Sedley LJ. The Claimant’s counsel said that he wished to keep the application for permission to appeal the first judgment in reserved. Sedley LJ granted permission to the local authority to appeal against the second judgment and commented that the Claimant could not keep in reserve an out of time appeal on the vicarious liability claim, but no formal application was made by the Claimant.
Sir Anthony Clarke said that the Claimant’s approach to a possible appeal was far from satisfactory. The application for permission to appeal against that order out of time would be refused. Permission to appeal would not have been granted in any event. The social workers never assumed any legal responsibility in this case towards B. In the light of the decision and reasoning in D, the Court of Appeal could not see any arguable basis upon which B’s claim that the social workers owed a duty of care to B could succeed.
The Claimant would therefore be left with claims based on misfeasance in public office and conspiracy, both of which had been held to be arguable.
FACTS:-
There had initially been two Claimants in this action. The first was L and the second B, who was L’s father. They alleged misfeasance in public office, conspiracy to injure and negligence against the First and Second Defendants and the police. The claims arose out of investigations carried by local authority social workers and the police into allegations of sexual abuse said to have been inflicted on L by her father, B. The allegations were made by L’s mother, S when L was very young.
L had been born in 1987 and her parents had separated in June 1988, whereafter B saw L from time to time. In the early 1990’s S made allegations of sexual abuse against B, as a result of which L was interviewed twice by a social worker and a police officer. He was arrested but released without charge. Later he made an application for contact with L and in 1995 a family court judge found that B had not sexually abused L in any way. The judge also heavily criticised the methods used by the police and social services. This led In October 1996 to L going back to live with B.
B’s case was that as a result of the investigation, he lost his employment, developed clinical depression and other psychological illness and he also became an alcoholic because of the prolonged legal proceedings. He issued proceedings in 1998 along with L (for whom he was litigation friend).
L discontinued her claim in June 2006 so that by the time of the matter came before the Court of Appeal, the only remaining Claimant was B, the father.
In 1999, the police applied to strike out the claim against them. That application (to which the local authority was not a party) succeeded at first instance on the grounds that the police were entitled to witness immunity, but the appeal was allowed by the Court of Appeal. (See [2001] EWCA Civ 346). The Court of Appeal said that the misfeasance in public office and conspiracy to injure allegations were arguable. As to the duty of care, it was also held arguable that the police officer owed a duty of care to L, the daughter. However that decision was not binding as between B and the local authority.
However the House of Lords then gave out their decision in D v East Berkshire Community Health NHS Trust [2005] UKHL 23. The net result of that judgment was that whilst a duty of care might be owed to a child in these circumstances, no duty of care would be owed to the parent who suffered damage.
The First Judgment
L discontinued her claim in June 2006, but B continued his claim against the local authority and the police. An application was made by the local authority to strike out part of B’s claim for damages, insofar as they were based on the alleged vicarious liability of the local authorities for alleged breaches of duty said to be owed by a social worker. On the 12th October 2006, Keith J struck out those parts of B’s claim on the grounds that it was not just, fair and reasonable to hold that there was such a duty (following D).
B’s counsel applied for permission to appeal but that was refused. At that point it was open to the Claimant to appeal against the decision, but instead the Claimant decided to apply for permission to re-re-amend the particulars of claim in order to allege a breach or breaches of the direct duty of care already pleaded. That led to a second hearing and a second judgment.
The Second Judgment
This judgement arose out of a hearing that took place on the 13th December 2006. B had applied for permission to re-re-amend the particulars of claim.
The Claimant had pleaded in Paragraph 39 of the re-amended particulars of claim that in carrying out the interviews the local authority and the social worker were exercising a statutory function by reason of section 1(1) of the Child Care Act 1980. Paragraph 40 stated that the police officer was exercising the common law powers of a police officer and in such capacity owed a duty to L and the public as a whole to prevent the commission of a crime.
Paragraph 41 alleged that the various social workers allocated to the case owed duties to L and B to discharge their professional functions with the care which could be reasonably expected of a reasonably competent social worker. Paragraph 42 alleged that the local authority was vicariously liable for that breach of duty. Paragraph 44 described the duty alleged in paragraph 41 as the vicarious duty, and then together with paragraph 45 set out the content of the duty.
However there were no allegations in the re-amended particulars of claim that that the local authority at any stage assumed a responsibility to B, as opposed to L, where such an allegation was made in paragraph 47. As to the police, similar allegations were made against the police officer concerned in paragraph 48.
Allegations of breach of duty made against both the local authority and the police on the basis of vicarious liability were contained in paragraph 50, and allegations of breach of duty solely against the local authority, also based on vicarious liability, were contained in paragraph 51.
However there were no allegations in the re-amended particulars of claim that the police owed a direct duty to either B or L.
As for the local authority, paragraph 43 alleged that it owed both L and B a duty to take reasonable care under the Child Care Act 1980 and the Children Act 1989. Paragraph 46 alleged that the direct duty required the local authority to have adequate systems in place. The pleading did not allege any breach of the direct duty. That had been pointed out at the first hearing in October 2006 before Keith J but he declined to rule upon the issue until the breaches of duty had been pleaded.
Paragraphs 43 and 46 were retained. However a new Paragraph 51A was put in. This alleged that in breach of the direct duty pleaded in paragraph 46, the local authority had no reasonable or sufficient system to enable its employees to discharge their professional duties.
Causation was pleaded in paragraph 57. No distinction was drawn between the various causes of action.
The local authority resisted the application to re-re-amend the particulars of claim, on the basis that it was not arguable that it was owed a direct duty of care. There were then written submissions and Keith J gave a second judgment. He held that the imposition of such a duty did not create a conflict of interest of the kind which applied to social workers. It was in the interests of the parents just as much as the children that investigations were carried out competently by staff, who were properly managed and supervised. Keith J had not seen anything in the House of Lords judgment in D to suggest otherwise and therefore the Claimant would be given permission to re-re-amend his claim.
The local authority appealed against that order to the Court of Appeal. Their counsel pointed out that although D was a case of vicarious liability on its facts, it was plain that the House of Lord did not draw any distinction in the context of doctors and social workers between liability based on vicarious liability and direct liability.
HELD:-
Sir Anthony Clarke reiterated the main points of the majority of the House of Lord in the judgment in D v East Berkshire Community Health NHS Trust [2005] UKHL 23. Although D was a case of vicarious liability on the facts, it was plain from the judgment of Lord Nicholls that no distinction was drawn between vicarious liability and direct liability. Lord Nicholls had recognised that there might be cases of an assumption of responsibility or other exceptional cases, but he still stated the general rule in clear terms. Sir Anthony Clarke recognised that D was not binding authority for the proposition that the principles apply to cases of direct liability. However the dictum of Lord Nicholls appeared to support the local authority’s submission that no duty was arguably owed on the facts of this case.
Therefore the decision of Keith J in his second judgment of the 13th December 2006 was not correct. The Claimant had to establish a breach of duty of at least one social worker. It was immaterial whether the social worker’s breach of duty was some failing of his own or solely because he was inadequately instructed, managed or supervised. The conflict or potential conflict of interest or duty as between the interests of the child on the one hand and the suspected parent on the other existed in either case.
The decision of Keith J in his first judgment of the 12th October 2006 was correct in holding that the social workers owed no duty to the Claimant sounding in damages. It was not fair, just and reasonable to hold that the social worker owed an actionable duty to the Claimant in the first place.
Sir Anthony Clarke said that the Court of Appeal had reached the conclusion that on the alleged facts of the case, there was no distinction between the two types of alleged breach of duty (direct duty/duty based on vicarious liability). Therefore the appeal against the Keith J’s order granting permission to re-re-amend the claim would be allowed.
Keith J had struck out the allegations that supported the Claimant’s case on vicarious liability. However no application was made to the court to seek permission to appeal that order. Instead an application had been made to re-re-amend the Particulars of Claim and that led to the trial judge’s second judgment. The local authority then applied for permission to appeal that judgment and the papers came before Sedley LJ. The Claimant’s counsel said that he wished to keep the application for permission to appeal the first judgment in reserved. Sedley LJ granted permission to the local authority to appeal against the second judgment and commented that the Claimant could not keep in reserve an out of time appeal on the vicarious liability claim, but no formal application was made by the Claimant.
Sir Anthony Clarke said that the Claimant’s approach to a possible appeal was far from satisfactory. The application for permission to appeal against that order out of time would be refused. Permission to appeal would not have been granted in any event. The social workers never assumed any legal responsibility in this case towards B. In the light of the decision and reasoning in D, the Court of Appeal could not see any arguable basis upon which B’s claim that the social workers owed a duty of care to B could succeed.
The Claimant would therefore be left with claims based on misfeasance in public office and conspiracy, both of which had been held to be arguable.