Human rights - Duty of care - Compensatory damages

Home Office v Mohammed and Ors: CA (Civ Div) (Lord Justices Sedley, Thomas, Hooper): 29 March 2011

The appellant Home Office appealed against the rejection of its applications to strike out certain claims of the respondents (X) for damages for delay in granting them indefinite leave to remain.

X claimed that they did not have settled status for a number of years because their applications for indefinite leave to remain had been unlawfully put on hold, or the Home Office had failed to implement the appropriate ministerial policy.

They issued claims seeking damages for breach of statutory duty, negligence and breach of articles 5 and 8 of the European Convention on Human Rights 1950.

The Home Office's application to strike out the claims succeeded in respect of breach of statutory duty and article 5, but failed in respect of negligence and article 8.

The judge held that a failure to competently operate the legislative scheme so as to achieve its aim of granting settled status if appropriate could amount to a breach of article 8.

He also held that where the claimants were members of a very specific group, as X were, and identified as being special by virtue of the relevant policy, there was such a relationship with the Home Office as to make it fair and reasonable for a duty of care to arise.

Held: (1) The article 8 claims, as accepted by the Home Office, raised a triable issue.

Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, (2004) QB 1124 was a decision on the facts and should not be regarded as being of any real assistance in determining what a claimant had to show to establish an article 8 claim, Anufrijeva considered (see paragraph 10 of ­judgment).

(2) As a general rule the proximity created by a statutory relationship did not by itself create a duty of care.

The theme of cases considering the imposition of a duty of care was the availability of other, possibly equivalent, forms of redress, R (on the application of A) v Secretary of State for the Home Department [2004] EWHC 1585 (Admin), [2004] 154 NLJ 1411, W v Home Office [1997] Imm AR 302 CA (Civ Div) and Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598, [2007] 1 WLR 2861 considered.

The absence of an alternative form of redress, however serious its consequences, might not be enough to establish a duty of care, but its presence might be sufficient, even assuming sufficient proximity created by a statutory relationship, to make it less than fair, just and reasonable to add a common law liability in negligence.

In the instant case, X could refer their complaints to the Parliamentary Ombudsman, who could recommend payment of compensation.

There was nothing in the instant claims to call for an incremental change to the margins of common law liability. X’s negligence claims should have been struck out (paragraphs 14-15, 18, 27).

Appeal allowed in part.

James Eadie QC, Jeremy Johnson for the appellant (instructed by Treasury Solicitor); Richard Drabble QC, David Lemer for the respondents (instructed by Alsters Kelley).