Negligence - Duty of care - Health authorities - Nursing homes

Trent Strategic Health Authority v Jain & anor: HL (Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Neuberger of Abbotsbury): 21 January 2009

The appellant nursing home proprietors (J) appealed against a decision ([2007] EWCA Civ 1186, [2008] QB 246) that the respondent health authority had not owed them a duty of care when making an ex parte application for the cancellation of their nursing home registration.

J had owned and run a registered nursing home for nine years. The health authority believed that the physical conditions in the home were unsatisfactory due to building works. The health authority obtained an order under section 30 of the Registered Homes Act 1984 (substantially re-enacted in section 20 of the Care Standards Act 2000) for the immediate cancellation of J’s registration. It gave no notice to J of its intention to seek such an order. All residents were immediately removed from J’s nursing home. J appealed to a Registered Homes Tribunal but the appeal was not heard for four months and the home remained closed. The tribunal found that there had been no justification for the health authority’s failure to warn J that the application was to be made, and that none of the matters raised by the health authority had warranted the immediate closure of J’s nursing home. J brought a claim for negligence against the health authority for the economic loss they had suffered. The issue to be determined was whether, in preparing and making its section 30 application, the health authority had owed J a duty of care in negligence.

Held: (1) Where action was taken by a state authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care would not be owed by the state authority to others whose interests might be adversely affected by the exercise of the statutory power. That was because the imposition of such a duty might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, B v Attorney General of New Zealand [2003] UKPC 61, [2003] 4 All ER 833, Harris v Evans [1998] 1 WLR 1285 CA (Civ Div) and Caparo Industries Plc v Dickman [1990] 2 AC 605 HL applied. The purpose of the power under section 30 was to protect the interests of the residents in nursing homes. J’s interests were in potential conflict with the interests of the residents, JD v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151, [2004] QB 558 applied.

(2) Where the preparation, commencement or conduct of judicial proceedings had the potential to cause damage such as psychiatric injury or economic damage, a remedy for the damage could not be obtained via the imposition on the opposing party of a common law duty of care. The protection of parties to litigation from damage caused to them by the litigation had to depend upon the control of the litigation by the court or tribunal in charge of it, and the rules and procedures under which the litigation was conducted, Customs and Excise Commissioners v Barclays Bank Plc (2006) UKHL 28, (2007) 1 AC 181 applied, Martine v South East Kent Health Authority, the Times, 8 March, [1993] CA (Civ Div) approved. It was clear therefore that the health authority owed no duty of care in tort to J.

(3) However, there was a lamentable lack of safeguards for absent respondents in the statutory procedures prescribed for section 30 applications. The procedures ought to be amended to incorporate safeguards on the lines of those applicable to ex parte applications in the High Court, including: provision for an expedited appeal; a discretionary power to require cross-undertakings from an applicant coupled with a means of enforcement; a requirement that short notice of the intention to make the ex parte application should be given, unless impracticable; a power to grant an immediate stay of the order; and an explicit statement that the applicant’s duty to the magistrate was a duty of full and fair disclosure, with sanctions available in the event of any breach. Sections 144 and 145 of the Magistrates Courts Act 1980 appeared to provide the necessary statutory authority for rules of that sort to be made. If procedural improvements along those lines were not introduced, the procedure under section 20 of the 2000 act would continue to appear to be incompatible with the convention rights of those against whom such ex parte applications were made. Magistrates faced with similar ex parte applications should probe the case made by health authorities and satisfy themselves whether there was such a risk that no other course, other than the making of an immediate cancellation order, could be followed.

(4) The remedies available under the Human Rights Act 1998 did not apply in the instant case as the acts of the health authority had taken place before the 1998 act was in force. (Obiter) If the events had occurred after the act came into force, J would have had a sound case for a remedy under the act. It was arguable that the health authority had acted incompatibly with article 6(1) of the European Convention on Human Rights 1950 and article 1 of protocol 1, but J would have to look to the European Court for a remedy on those grounds.

Appeal dismissed.

Augustus Ullstein QC, Shirley Hennessy (instructed by Barker Gillette) for the appellants; Colin McCaul QC (instructed by Eversheds) for the respondent.