B V READING BOROUGH COUNCIL, WOKINGHAM DISTRICT COUNCIL AND THE CHIEF CONSTABLE OF THAMES VALLEY POLICE [2009] EWHC 998 (QB)
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, the mother 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 went back to live with her mother and discontinued her claim in June 2006 so that the only remaining Claimant was B, the father.
Proceedings were issued against the Defendants in May 1998. On the 19th December 2002, the Claimants applied to Astill J for an order/declaration that they be entitled to rely on those two judgments as “evidence” admissible in these proceedings and as being finally determinative of the facts stated in them. It was also sought to strike out certain passages in the defences inconsistent with those findings. Astill J refused the application and there was no appeal.
JUDGMENT:-
Mr Justice Mackay said that the history of the litigation did little credit to those concerned with its conduct. The Family Court proceedings took five and a half years. The Queen’s Bench proceedings were begun in May 1998 and had already involved two appeals to the Court of Appeal.
The Claimant’s counsel had asked the court to overturn the decision of Astill J. Mackay J was unwilling to do that because according to the case of Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 Ch there had to be shown some material change of circumstances or that the judge who made the order was misled in some way.
In any event McKay J said that Astill J had been right to refuse the application. The application had been based on abuse of process, that it would be a collateral attack upon the judgment of the judge to re-litigate his findings in these proceedings. The issue was whether what the care judge had said about the conduct of the social worker and the police officer involved in the case could properly be considered orders, judgements, necessary elements or implied necessary elements in the care proceedings. Astill J was dealing with the issue of whether the child (L) had been abused by her father. It was not a necessary part of his decision that he should criticise the social worker or the police officer, nor make a judgment of whether they had been professionally negligent. The question of professional negligence was wholly distinct from the care decision.
The notion that the care hearing could be used to establish conclusively against either the police officer and the social worker that they had acted dishonestly and in bad faith, would in the judgment of McKay J be to envisage the plainest breach of their elementary rights to a fair trial.
Claims in negligence/breach of duty
There had been two further interlocutory hearings before Keith J on the 6th October and the 13th December 2006. In the first instance he struck out those parts of the claim relating to the First and Second Defendant’s vicarious liability for breach of the social worker’s duty owed to B. In the second he refused to strike out that part of the re-amended claim which alleged breaches of an alleged direct duty of care owed by the local authority to B for systemic negligence.
The Court of Appeal considered both rulings in [2007] EWCA Civ 1313. The Claimant was out of time to appeal against the first of Keith J’s orders and in any event, the Court of Appeal said that they would not have granted permission to appeal, pointing to the judgement in JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373 where it was held that the conduct of child care investigations by health and childcare professionals was not an exercise that should attract a duty of care actionable in private law, as far as the Claimant (the father) was concerned.
However the Court of Appeal did allow an appeal against the second order of Keith J. The House of Lords decision in JD was not binding authority for the proposition that there was no duty of care in cases of direct liability. The dictum of Lord Nichols in that case appeared to support the local authority’s submissions that if the House of Lords decided that there could be no vicarious liability in cases such as the Claimant’s, then there could be no direct liability either.
Therefore the claim should not go to trial on this issue, which left the Claimant with only his claims for misfeasance and conspiracy against the First and Second Defendants.
As far as the police were concerned, they had made an earlier attempt to strike out the case against them in [2001] 1 WLR 1575. The Court of Appeal upheld the decision of the court below not to strike out the claim of the daughter, as there was an arguable case of proximity. In addition, the claim of the father in negligence was allowed to proceed. However the Court of Appeal said that the assumption of responsibility issue as between the father and the police needed to go to trial, and was likely to take a “short time.”
The Claimant’s counsel tried to argue that this was an exceptional case and an exception to the general rule in Hill v Chief Constable of West Yorkshire [1989] AC 53 as was said in the case of Brooks v Commissioner of Police [2005] 1 WLR 1495. McKay J was quite satisfied that this was not such an exceptional case and no claim in negligence could be allowed to proceed. The case therefore against the police fell to be decided no the same basis as that against the local authority, namely whether the Claimant could show that there was misfeasance in public office and/or a conspiracy in this case.
Misfeasance in public office
The ingredients of this tort were clearly set out in the well known decision of the House of Lords in Three Rivers DC v Bank of England (No.3) [2003] 2 AC 167. The Defendant had to be a public officer, exercising a power as such and acting knowing or being subjectively reckless as to, the fact that he has no power to do the act complained of and knowing that the act will probably injure the Claimant. The tort involved subjective bad faith in the exercise of public powers.
The Claimant’s counsel had conceded that if he failed on misfeasance in public office, he could not succeed on conspiracy to injure.
McKay J commented that he was hearing the evidence some 19 years on, which was unsatisfactory. He then considered the evidence. There was certainly bad practice in interviewing the child at the time of the initial child investigation, and there seemed to be desperation to get the right evidence. McKay J however was not prepared to accept that either the police officer or the social worker (who had conducted the interview) were attempting to create evidence incriminating the father. They were essentially truthful and reliable witnesses on this issue.
There was an allegation that the police officer had said to the father at interview that the police had “some evidence” and that this was intended to make him think that the evidence was very strong. McKay J did not accept this.
A further allegation was made to the effect that the police officer had told the child’s mother that the father was “guilty as hell”. McKay J did not accept that allegation. It was clear that the mother had formed her own view and an implacable belief in the guilt of the father that persisted every after her own counsel accepted in court in 1993 that there was no support for it. There was also evidence of the mother’s influence over the daughter.
The claims in misfeasance in public office and conspiracy to injure must therefore fail. There had been a bad misjudgement in the investigation, but sadly it was in the nature of risk assessment that errors would be made in both directions.
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, the mother 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 went back to live with her mother and discontinued her claim in June 2006 so that the only remaining Claimant was B, the father.
Proceedings were issued against the Defendants in May 1998. On the 19th December 2002, the Claimants applied to Astill J for an order/declaration that they be entitled to rely on those two judgments as “evidence” admissible in these proceedings and as being finally determinative of the facts stated in them. It was also sought to strike out certain passages in the defences inconsistent with those findings. Astill J refused the application and there was no appeal.
JUDGMENT:-
Mr Justice Mackay said that the history of the litigation did little credit to those concerned with its conduct. The Family Court proceedings took five and a half years. The Queen’s Bench proceedings were begun in May 1998 and had already involved two appeals to the Court of Appeal.
The Claimant’s counsel had asked the court to overturn the decision of Astill J. Mackay J was unwilling to do that because according to the case of Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 Ch there had to be shown some material change of circumstances or that the judge who made the order was misled in some way.
In any event McKay J said that Astill J had been right to refuse the application. The application had been based on abuse of process, that it would be a collateral attack upon the judgment of the judge to re-litigate his findings in these proceedings. The issue was whether what the care judge had said about the conduct of the social worker and the police officer involved in the case could properly be considered orders, judgements, necessary elements or implied necessary elements in the care proceedings. Astill J was dealing with the issue of whether the child (L) had been abused by her father. It was not a necessary part of his decision that he should criticise the social worker or the police officer, nor make a judgment of whether they had been professionally negligent. The question of professional negligence was wholly distinct from the care decision.
The notion that the care hearing could be used to establish conclusively against either the police officer and the social worker that they had acted dishonestly and in bad faith, would in the judgment of McKay J be to envisage the plainest breach of their elementary rights to a fair trial.
Claims in negligence/breach of duty
There had been two further interlocutory hearings before Keith J on the 6th October and the 13th December 2006. In the first instance he struck out those parts of the claim relating to the First and Second Defendant’s vicarious liability for breach of the social worker’s duty owed to B. In the second he refused to strike out that part of the re-amended claim which alleged breaches of an alleged direct duty of care owed by the local authority to B for systemic negligence.
The Court of Appeal considered both rulings in [2007] EWCA Civ 1313. The Claimant was out of time to appeal against the first of Keith J’s orders and in any event, the Court of Appeal said that they would not have granted permission to appeal, pointing to the judgement in JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373 where it was held that the conduct of child care investigations by health and childcare professionals was not an exercise that should attract a duty of care actionable in private law, as far as the Claimant (the father) was concerned.
However the Court of Appeal did allow an appeal against the second order of Keith J. The House of Lords decision in JD was not binding authority for the proposition that there was no duty of care in cases of direct liability. The dictum of Lord Nichols in that case appeared to support the local authority’s submissions that if the House of Lords decided that there could be no vicarious liability in cases such as the Claimant’s, then there could be no direct liability either.
Therefore the claim should not go to trial on this issue, which left the Claimant with only his claims for misfeasance and conspiracy against the First and Second Defendants.
As far as the police were concerned, they had made an earlier attempt to strike out the case against them in [2001] 1 WLR 1575. The Court of Appeal upheld the decision of the court below not to strike out the claim of the daughter, as there was an arguable case of proximity. In addition, the claim of the father in negligence was allowed to proceed. However the Court of Appeal said that the assumption of responsibility issue as between the father and the police needed to go to trial, and was likely to take a “short time.”
The Claimant’s counsel tried to argue that this was an exceptional case and an exception to the general rule in Hill v Chief Constable of West Yorkshire [1989] AC 53 as was said in the case of Brooks v Commissioner of Police [2005] 1 WLR 1495. McKay J was quite satisfied that this was not such an exceptional case and no claim in negligence could be allowed to proceed. The case therefore against the police fell to be decided no the same basis as that against the local authority, namely whether the Claimant could show that there was misfeasance in public office and/or a conspiracy in this case.
Misfeasance in public office
The ingredients of this tort were clearly set out in the well known decision of the House of Lords in Three Rivers DC v Bank of England (No.3) [2003] 2 AC 167. The Defendant had to be a public officer, exercising a power as such and acting knowing or being subjectively reckless as to, the fact that he has no power to do the act complained of and knowing that the act will probably injure the Claimant. The tort involved subjective bad faith in the exercise of public powers.
The Claimant’s counsel had conceded that if he failed on misfeasance in public office, he could not succeed on conspiracy to injure.
McKay J commented that he was hearing the evidence some 19 years on, which was unsatisfactory. He then considered the evidence. There was certainly bad practice in interviewing the child at the time of the initial child investigation, and there seemed to be desperation to get the right evidence. McKay J however was not prepared to accept that either the police officer or the social worker (who had conducted the interview) were attempting to create evidence incriminating the father. They were essentially truthful and reliable witnesses on this issue.
There was an allegation that the police officer had said to the father at interview that the police had “some evidence” and that this was intended to make him think that the evidence was very strong. McKay J did not accept this.
A further allegation was made to the effect that the police officer had told the child’s mother that the father was “guilty as hell”. McKay J did not accept that allegation. It was clear that the mother had formed her own view and an implacable belief in the guilt of the father that persisted every after her own counsel accepted in court in 1993 that there was no support for it. There was also evidence of the mother’s influence over the daughter.
The claims in misfeasance in public office and conspiracy to injure must therefore fail. There had been a bad misjudgement in the investigation, but sadly it was in the nature of risk assessment that errors would be made in both directions.