QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|SURREY OAKLAND NHS TRUST|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MISS J RICHARDS (instructed by CAPSTICKS SOLICITORS, 77-83 UPPER RICHMOND ROAD, LONDON.SW15 2TT) appeared on behalf of the Defendant.
Crown Copyright ©
"AND whereas on the understanding that the relevant Local Authorities will complete any necessary multi-disciplinary needs assessments on all the residents currently at St Ebba's:
(1) Residents whose needs assessed through a multi-disciplinary assessment (taking into account the views of residents, carers and relatives) should be met by a village community placement will be given such a placement subject to the Choice of Accommodation Directions...and any other statutory provisions or guidance.
(2) If any such multi-disciplinary assessment arrives at the conclusion that a resident's needs should only be met by a village community placement, and that should be at St Ebba's, they will be offered such a placement subject to
(a) any necessary statutory approvals being obtained including planning permission,
(b) the relevant authorities identifying such a placement in accordance with the Directions and any other statutory provisions for guidance
and (c) the needs of other residents.
(3) Where a multi-disciplinary needs assessment (which will have taken into account the views of the residents, their relatives and/or carers) has concluded that the resident's needs could be met appropriately at either a village community (whether at St Ebba's or otherwise) or a placement in the community then the relative and/or family carer's preference will be determinative of the placement subject to the requirements of the Directions and any other statutory provisions or guidance."
"... has concluded that the resident's needs could be met equally appropriately at either a village community (whether at St Ebba's or otherwise) or a placement etc..."
MR WESTGATE: It lapsed today.
MR JUSTICE COLLINS: I do not have to remove it. Is it simply a question of not renewing it?
MISS RICHARDS: It is to four o'clock today, my Lord, so I would be grateful if your Lordship would remove it.
MR WESTGATE: I cannot resist that.
MR JUSTICE COLLINS: In that case I will order that the injunction shall cease as from now.
MISS RICHARDS: My Lord, I do have two applications to make. The first is for an expedited transcript of your Lordship's judgment. There are a number of other residents about whose potential movement PARG is concerned and they are all represented, I think, by the solicitors representing the claimant in this case. Whilst every case has to be looked on its own facts we do think that a transcript of your Lordship's judgment may be helpful, particularly in relation to the Family Division issue.
MR JUSTICE COLLINS: Yes. Do you not have to get some sort of an order from me that it can be used because otherwise it falls within the practice decision, does it not, that being a judgment on a leave application it is of no interest to anyone?
MISS RICHARDS: I appreciate that although----
MR JUSTICE COLLINS: I have forgotten what the exact terms of it are.
MISS RICHARDS: My Lord, so have I, I am afraid. Certainly given that this is a case that is unlikely to be proceeding any further it is the only judgment that is ever going to be available and it would be beneficial.
MR JUSTICE COLLINS: Well, I shall – let me put it this way, if you want to use it, and I understand why you might want to, particularly as there are other cases which could develop based on this one, then you are entitled to do so, notwithstanding that it is a judgment on a leave application.
MISS RICHARDS: My Lord, I am grateful. The second matter is in relation to costs.
MR JUSTICE COLLINS: Yes.
MISS RICHARDS: I am assuming that the claimant is legally aided, but I ask----
MR WESTGATE: That is a correct assumption. No certificate has been lodged with the court, I understand because my instructing solicitors have granted themselves an extension under their franchise, so no certificate has yet been processed through the system, but there is a public funding certificate in force.
MR JUSTICE COLLINS: They are not here?
MR WESTGATE: They are not here.
MR JUSTICE COLLINS: Well, you cannot have any order from me, not that you need any for taxation or whatever it is nowadays, until you file such a certificate, can you?
MR WESTGATE: My Lord, no.
MR JUSTICE COLLINS: I never see the point of making the order anyway because whether I make it or not makes not a blind bit of difference, as I understand it.
MR WESTGATE: As far as that aspect of the costs is concerned, I would ask for the order on undertaking to file the certificate.
MR JUSTICE COLLINS: Well, you can have it provided you file within seven days; if you do not then you cannot have it.
MR WESTGATE: I am sure we will have in seven days.
MR JUSTICE COLLINS: But whether it makes any difference whether you have it or not, I do not know.
MISS RICHARDS: My Lord, I do have a further application in relation to costs which is that I ask for an order that the claimant's solicitors be asked to show cause as to why they should not pay the costs of the proceedings.
MR JUSTICE COLLINS: Why?
MISS RICHARDS: My Lord, I think six reasons, in no particular order: firstly, in so far as the correct forum is concerned those instructing me have reiterated to the claimant's solicitors repeatedly that the Family Division as the best interest jurisdiction is the correct procedure. That is something that the claimant's solicitors simply have not answered or addressed at all and it is so obviously the correct procedure in the present case that to go by way of judicial review, in my respectful submission, is wholly inappropriate. Secondly, there was, in my submission, no factual basis whatsoever to support this application and I do turn to the terms of your Lordship's own judgment to that extent, to that effect. Thirdly, there was material nondisclosure in relation to the issue about the terms of the order. The question of the wording of part 3----
MR JUSTICE COLLINS: Were they the solicitors involved in the previous proceedings?
MISS RICHARDS: Counsel was the same counsel involved.
MR JUSTICE COLLINS: Counsel I know, but where they the same solicitors?
MISS RICHARDS: Different solicitors but they had the correspondence.
MR JUSTICE COLLINS: Right, certainly counsel I know, Mr Wise was common.
MISS RICHARDS: Certainly it was the same counsel and, my Lord, that piece of information was, in any event, pointed out directly in writing to those instruction me to the claimant's solicitors on 5th June in a letter that is in the claimant's bundle at page 29. But although the letter appears in the bundle, it is not flagged up as an issue in the claim form itself and the claim form itself sets out the order in quite different terms.
MR JUSTICE COLLINS: Yes.
MISS RICHARDS: There is also, in my respectful submission, a degree of not necessarily non-disclosure but a misrepresentation of Mrs K.'s position in the claim form and grounds because what is suggested is that her preference is clearly for a village community placement and that is not what the evidence demonstrates at all. The evidence clearly demonstrates that her only concern is that D. should not leave St Ebba's and that is clearly important because of the way in which the disputed order of 4th April operated. There is, fifthly, a considerable concern about the extent to which Mrs K. is even aware of these proceedings.
MR JUSTICE COLLINS: I see you have some evidence that she was surprised that an injunction had been sought.
MISS RICHARDS: My Lord, yes, which is when the proceedings were issued last week and she did not appear to be aware of that at all.
MR JUSTICE COLLINS: Well, I have heard nothing from her. It may be that she disputes that and indeed I think there is evidence that she disputes some earlier suggestion that she had said something that was inconsistent with her case.
MISS RICHARDS: My Lord, I appreciate that is right which is why obviously what is sought today is to show cause order not an order for costs.
MR JUSTICE COLLINS: No, of course.
MISS RICHARDS: And lastly there is a real concern that these proceedings were not brought in any sense in the best interest of the claimant, which obviously ought to be the primary concern of any legal representative, and were effectively brought to further the interests of PARG which we understand has been putting considerable pressure on relatives to raise objections to removals from St Ebba's.
MR JUSTICE COLLINS: Well, this is one of the reasons why it is clearly not appropriate for these sorts of proceedings to be pursued as they should go to the Family Division with the assistance of the Official Solicitor.
MISS RICHARDS: And it is those concerns which lead us to invite the court to make a show cause order, obviously depending on what is said by the claimant's solicitors, the matter may proceed no further. That is the application I make today.
MR JUSTICE COLLINS: Yes, now, Mr Westgate.
MR WESTGATE: My Lord, so far as the order, in effect, is an attack on the position of Mrs K. is concerned, which is really points 4, 5 and 6, those are fairly serious allegations, where there is really no basis to suggest that Mrs K.----
MR JUSTICE COLLINS: No, I think there are problems when a relation who has her own agenda is next friend, but that is perhaps inevitable in proceedings such as these, I know not.
MR WESTGATE: My Lord, there are clear reasons why, in circumstances like this that it may sometimes be appropriate for the Official Solicitor to take over that role, but that does not lead to the suggestion of impropriety.
MR JUSTICE COLLINS: No, that can come later, I mean if these proceedings had properly been continued it may be that one would have had to say she must step down and that the Official Solicitor must be brought in to consider whether these proceedings ought in the end to proceed, I know not. What I am getting at is, perhaps if there had not been the Family Division alternative route and this was the only route one might have had to make some sort of an order----
MR WESTGATE: There may be have been a challenge, but the basis of the challenge (inaudible) was not on the basis that there was any kind of collateral motive but that Mrs K.----
MR JUSTICE COLLINS: No, I think it is unfortunate that PARG is in the background and PARG has its own concerns, but there we are.
MR WESTGATE: The difficulty is that your Lordship has evidence really only one way.
MR JUSTICE COLLINS: No, I mean I see the involvement of PARG from the grounds themselves because that is referred to in paragraph 5.
MR WESTGATE: Well, my Lord, their involvement in the early proceedings is certainly selfevident and this is part of the background of these proceedings.
MR JUSTICE COLLINS: Well, that may not be the strongest of points, but I am concerned with the incorrect forum, because it was drawn to your client's attention, the lack, frankly, of any factual basis of support and the issue about the terms of the consent order. I mean I make it clear I do not think these proceedings ought ever to have been brought and, of course, there was potential damage done because an injunction was granted on the papers and if Stanley Burnton J had been aware of the practice direction and the Family Division situation I have grave doubts as to whether he would ever have granted an injunction, and that ought to have been drawn to his attention, ought it not?
MR WESTGATE: My Lord, the matters put in the statement of Mr Mason, which was made in opposition to this application— it is page 7 of the defendant's bundle.
MR JUSTICE COLLINS: Yes. This was not before Stanley Burnton J, was it?
MR WESTGATE: My Lord, it was not, no.
MR JUSTICE COLLINS: But he made an order on the papers, is that right?
MR WESTGATE: My Lord, as I understand the position.
MR JUSTICE COLLINS: Because there was some doubt as to whether he ought to have done.
MR WESTGATE: My Lord, the paragraph I refer to in his statement is paragraph 8 where he says, having referred to his conversation with the Official Solicitor's office, she was very surprised this claim was being brought by judicial review. In her view it was inappropriate and should be dealt with in the Family Division, and then refers to the new practice note from the Official Solicitor and said it had not been published in the law reports yet, she would have had to copy and that it was being used by them in the Family Division. So it is, as it were----
MR JUSTICE COLLINS: Well, all right, the existence of the practice note, but the existence of the jurisdiction is well-known, is it not?
MR WESTGATE: Well, my Lord, yes, but if the existence of the jurisdiction is well known then it cannot be--
MR JUSTICE COLLINS: You mean the judge ought to have known?
MR WESTGATE: –led to a question of non-disclosure, it can be a question of, obviously, these matters are dealt with under some pressure and that if there is force in the point it is that the solicitors ought never to have proceeded by that route rather than they failed to bring an alternative route to----
MR JUSTICE COLLINS: But how did it come about that Stanley Burnton J granted an injunction? Was this ex parte?
MR WESTGATE: As I understand the position, and I do not know the precisely details as to when this claim was issued, that the claim would be issued with an indication that it ought to go before a judge at the earliest possible opportunity according to the----
MR JUSTICE COLLINS: Obviously.
MISS RICHARDS: I am sorry, I think I can assist in that respect. My understanding is that the proceedings were issued late on 7th June and the papers went almost immediately, Thursday, to Stanley Burnton J at that stage. The practice note had already been faxed over that morning by those instructing me to the claimant's solicitors.
MR JUSTICE COLLINS: Yes. But apart from that the procedure in the Administrative Court, I thought, had been amended to insure that injunctive relief was not normally granted on paper and that the other side were notified.
MISS RICHARDS: Well, my Lord, those instructing me were notified late in the afternoon, but because Stanley Burnton J saw the papers and gave an injunction immediately on the papers, there was no oral hearing. I think we wrote and asked that the injunction should not be granted and that letter hopefully was put by the Administrative Office before him.
MR JUSTICE COLLINS: You were notified, were you, before the application was made that it was going to be made? Or were you----
MISS RICHARDS: Can I just take precise instructions as to the time?
MR JUSTICE COLLINS: Yes.
MISS RICHARDS: Those instructing me were made aware on the day of issue that they were going to issue. We wrote to the Administrative Court Office to ask that the matter should not be dealt with on papers or when we were told that Stanley Burnton J had looked at the matter on papers, because we asked for there to be an immediate oral hearing but that did not prove possible because of the non-availability of the judge. My Lord, I do know the whole question of the granting of interim relief under the new procedure rules is currently being investigated by Scott Baker J and a committee.
MR JUSTICE COLLINS: Yes, as a result of an order I made. Yes, which is why I am well aware of this problem and that such an injunction ought not to be made on the papers, and ought not to have been made on the papers certainly without the opportunity for you to put in anything in opposition. Indeed, I do not see the need for it because I imagine, I mean, were you asked to defer until the Friday pending so that you could all go to court?
MISS RICHARDS: The move was not due to take place until Friday, as I understand it. We have indicated that we would not be discharging her until the Friday, at an earlier point in the week.
MR JUSTICE COLLINS: So they chose to go on Thursday.
MISS RICHARDS: Thursday, late afternoon.
MR JUSTICE COLLINS: And they chose not to – I think you say that they had the practice note but it still was not put before the judge?
MISS RICHARDS: Well, my Lord, I do not know for certain what was put before the judge, but there is nothing in the claimant's bundle to suggest that it was.
MR JUSTICE COLLINS: There is nothing in the papers, indeed, I do not know quite why, but I have not even got the injunction in the papers before me. But, I mean, I was not even aware that there was an injunction, merely that there was an application for it today.
MR WESTGATE: My Lord.
MR JUSTICE COLLINS: But that may be the fault of the court file, I do not know.
MR WESTGATE: The form, I think, was that it was on the consideration of the papers that the injunction be granted until today really.
MR JUSTICE COLLINS: With the greatest possible respect to Stanley Burnton J, there may have been good reason for it, I make that qualification, but at the moment it does seem to me that he ought not to have done it.
MR WESTGATE: My Lord, it certainly, as matters appear, it may well have been possible for an urgent hearing to have been arranged, although this is another matter which is under consideration.
MR JUSTICE COLLINS: (To the Court Associate) Now that looks like it, is that the order? Thank you. (To Counsel) Yes, you are quite right. It is described as – sorry to mistrust the defendant –"Merton, Sutton and Wandsworth Health Authority and Wandsworth LBC Interested Parties", they were served, were they?
MR WESTGATE: As far as I know. I am not able to confirm that.
MR JUSTICE COLLINS:
"Stay of the implementation to discharge on the papers until 4 pm today. Permission to apply to extend that stay on notice. Application be listed on 12th June. The defendant and the interested parties have permission to apply to vary or discharge this order on notice." (Quote unchecked)
It does not say what notice. Well, I think, with respect to my colleague, to my brother, I am not very happy with that order, but there we are.
MR WESTGATE: Well, my Lord, returning then to the arguments that are put, that the claimant's solicitor should show cause, as to inappropriate forum, although it is right to say that the practice note was drawn to the attention of my solicitors at a fairly late stage and as your Lordship's found in the event this was an inappropriate forum. It is not clear, or would not have been clear at the time, that this forum is necessarily as inappropriate as your Lordship has found today.
My Lord, I draw your Lordship's attention to the relatively recently promulgated practice direction which would not necessary come to the attention of other practitioners. As your Lordship pointed out this does not exclude the jurisdiction of this court in the case of a clear error of law. And as matters appeared at the time before any further material had been adduced by the defendants, this was on the face, or could have been said to have been a case where the authority had simply failed either to address the appropriateness of a village community or to deal with any detriment to the defendant in leaving this accommodation. Both of which were matters which were, if they were made out, classic errors of law and it may be that there is much to be said for dealing with those as errors of law, rather then getting into a full merits hearing in front of the Family Division, when it may be that if those matters were properly addressed then they might satisfy the next friend that the best interests of the claimant are in fact being observed.
Although the Family Division unquestionably has jurisdiction to deal with an application of this kind, this is not the typical kind of application that is made in the finding of best interests, normally that kind of application is made by the party who is seeking to change his status quo either by performing a particular procedure----
MR JUSTICE COLLINS: I agree this is – but the fact that is it not the same as others does not stop it being quite clearly, I would have thought, within the ambit of acts which are – well, clearly it is an act which affects the patient.
MR WESTGATE: Well, my Lord, certainly, but the point I make is that it is not self-evidently incorrect for the solicitors to take the view that they can legitimately proceed to challenge the conduct of the authority, when themselves have failed to make application for declaration to proceed on what appeared to them to be misguided basis and that really runs into my submissions on whether the facts behind this application were such that it could not reasonably have succeeded, although as it has turned out there has been a wealth of evidence that has been put forward to substantiate the view that Church Layne is a more appropriate placement. At the time what one had was the agreement of 4th April.
MR JUSTICE COLLINS: Yes, but, Mr Westgate, there was never any evidence that you had which suggested that (a) that Church Layne was not appropriate for the time being, and (b) suggested that to keep her at St Ebba's would be more in her interests than transferring her to Church Layne for the time being.
MR WESTGATE: My Lord, I take that point, but one must also bear in mind the time scale within which this has----
MR JUSTICE COLLINS: No, but what I am making clear or trying to make clear is that my concern is more with the injunction and what was not put before Stanley Burnton J than the proceedings before the Administrative Court as such, the judicial review proceedings. I think there was precious little to support them, but I see that you have arguments about that. I think there was absolutely nothing, and I mean absolutely nothing, to justify the application for the injunction.
MR WESTGATE: Well, my Lord, the difficulty that one has is that we do not know what led to the injunction being granted in the way that it was.
MR JUSTICE COLLINS: No, well we do, we know the material was put before Stanley Burnton J and it persuaded him, on the application being made, to grant an injunction.
MR WESTGATE: My Lord, indeed but the current practice appears to be that applications for urgent interim relief are put before the judge in the first instance and at that point one of two things could have happened, the order could have been granted in the form that it in fact was, the directions could have been given for the hearing of the injunction or it could have been dismissed at that stage.
MR JUSTICE COLLINS: The point I am making is that the application should, in my view, never have been made because there was nothing to support it, but having been made fullest disclosure should have been given and, most importantly, disclosure should have been given of the assertion by the other side that this was an inappropriate form and the practice direction of which your solicitors were by then aware. If Stanley Burnton J had been shown all that and I cannot, of course, say he would not have granted an injunction, I can say I would not have done, and I would be surprised if he thought it right to do so. I mean I am in a much better position because I have had a lot more information, obviously, but there is a requirement, as you know, of the utmost good faith in judicial review applications and particularly where interim relief is sought for obvious reasons. That is what troubles me, I am bound to say, Mr Westgate, about the way this was pursued. There may be a good answer, but I am only asked to say that there is enough to require your solicitors to show cause.
MR WESTGATE: I am not in a position to supply any answers beyond what I have said.
MR JUSTICE COLLINS: No, and I would not expect you to and at the moment I am inclined to think, I am afraid, that there is enough. As I say, it may be that there will be a true answer but, subject to anything further you say, I am afraid for the reasons I have sought to indicate, I think there is sufficient.
MR WESTGATE: I think the only thing I can say is that it was either an obviously misconceived application or it was not. If it was not obviously misconceived then the failure to bring to the court's attention the assistance of the practice direction or that the defendants were asserting it was misconceived. In reality it did not make any difference although I see that your Lordship can probably take the point that if the opposing point of view is put before the court then it may make a difference.
MR JUSTICE COLLINS: Well, absolutely. No, I am afraid, Mr Westgate, I am against you. I think that there is sufficient to require your solicitors to show cause, provided Miss Richards really wants to pursue it, because the danger of this always is that you have ancillary proceedings which incur extra costs.
MISS RICHARDS: We do wish to pursue it, obviously that will have to be reviewed though in the light of by whatever information is supplied by the claimant's solicitors at that stage.
MR JUSTICE COLLINS: I shall then require that your solicitors, Mr Westgate, show cause why they should not pay the costs thrown away and I am particularly concerned, as I have indicated, by the failure to disclose the practice direction when granting the injunction, the manner in which the injunction was sought, leaving it until the Thursday afternoon and the fact, as I see it, that there really was absolutely no material which could justify the grant of any injunction. It could not conceivably have been thought to be in the interest of the claimant to seek the injunction, that is what is really concerning me. But that not only goes to the injunction but also goes to the application generally because, as I say, I am more concerned with the injunction.
MISS RICHARDS: Could your Lordship put a time period on that?
MR JUSTICE COLLINS: Yes, well I am going to say – how long do you want?
MR WESTGATE: Can I have 14 days, I would hope----
MR JUSTICE COLLINS: You can have at least that. I mean I would be happy to give you three weeks.
MR WESTGATE: In that case I will ask for three weeks.
MR JUSTICE COLLINS: Come back in three weeks and you better come back before me. Right. Incidently, do either of you want me to ask Stanley Burnton J anything about this? I will do so if you wish, but if I do and if he does indicate anything I obviously would only do it on the basis that I would let you both know.
MR WESTGATE: It may be better to wait and see.
MR JUSTICE COLLINS: I think it probably is better to wait and see and say nothing. Right.