England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 October 2012

Mr Justice Eady :

1. On 3 October 2012 I heard an appeal from an order made by Master Leslie on 20 April of this year, whereby he refused the Appellants' application for pre-action disclosure in accordance with CPR 31.16. The Master himself gave permission to appeal, having stated that he had not found the application easy to deal with. From that I would not dissent.
2. At the outset of the hearing I gave permission for the Appellants to be anonymised and for the remainder of the proceedings to be heard in private. This was because of the highly sensitive and distressing personal information concerning their upbringing that was likely to be canvassed in the course of counsel's submissions. There was no countervailing public interest in the subject-matter of the proceedings sufficient to justify their being identified: see e.g. Re Guardian News & Media Ltd [2010] UKSC 1 at [52].
3. It is obvious that applications of this sort can cause defendants considerable inconvenience and expense (often involving public money) at a time when it remains unclear whether any claim will in fact be brought. Nevertheless, pre-trial disclosure has been sanctioned by Parliament, where the circumstances are appropriate, and, as I have said, the matter is currently governed by CPR 31.16.
4. The application was supported by the evidence of Christopher Hurlston in two witness statements and also, in certain respects, by evidence from the Applicants' grandmother and by the report of a psychologist.
5. The Appellants are brother and sister. A, the sister, was born on [a date in] 1995 and B on [a date in] 2000. At the relevant times, they lived within the area for which the Respondent local authority is responsible. Its social services department had serious concerns, from 1998 onwards, about domestic violence between the Appellants' parents and their exposure to it. There were a number of referrals over the years. Indeed, about 30 such incidents seem to have been reported to the police in the three years following 2001. Eventually, on 20 October 2005, the Appellants were received into the care of the Respondent. They went to live with their grandmother in Liverpool originally, but in due course for reasons explained in her witness statement other arrangements were made for B. The Master described him as having "great difficulties", generally, and as not having cooperated with those who were responsible for his welfare or representing his interests.
6. Criticisms were levelled at the Respondent's handling of the case by the guardian in the care proceedings, who expressed the opinion that " … the local authority failed in their duty to protect [the Appellants] prior to removal". In the light of this concern, the judge who was hearing the care proceedings in the Taunton County Court, His Honour Judge Bromilow, made an order on 20 May 2008 that the guardian should have leave to release the papers to the Official Solicitor. This was well over four years ago and considerable delay has occurred. Meanwhile, the Official Solicitor has been attempting to investigate a possible negligence claim to be made against the Respondent on behalf of the Appellants.
7. Local authorities regularly commence proceedings for the purpose of seeking a care order pursuant to the Children Act 1989. For this purpose, it will be necessary to persuade the court that certain threshold criteria, as set out in s.31 of the Act, have been fulfilled. Usually, it will involve the local authority seeking to establish that the child in question is suffering, or is likely to suffer, "significant harm" attributable to the care given to him, or likely to be given to him if the order is not made – not being care which it would be reasonable to expect a parent to give to the child.
8. Sometimes a court hearing care proceedings may have the impression that the relevant authority has been slow off the mark in commencing such proceedings and that, correspondingly, the child in question was exposed to harm while living with his parents which could have been avoided by prompt action on the part of the authority. It is in such circumstances, as in the instant case, that the Official Solicitor will be called upon to act as litigation friend of last resort.
9. The Official Solicitor will then instruct solicitors to investigate. Usually, this will require the obtaining of social services records and, thereafter, appropriate expert reports in the field of social work practice. This will be to identify any breaches of duty and, especially, when (if at all) it became negligent on the authority's part to fail to remove the child or take other appropriate action. For obvious reasons, it will generally not be possible for a report to be compiled without the expert having had access to the full records. For various reasons, not least the disciplines of data protection, it will sometimes be necessary to make an application to the court for pre-action disclosure in order to obtain the records. Almost inevitably, they will contain a good deal of information about persons other than the applicants (for example, parents, social workers, teachers, school friends or other relatives).
10. One of the points made here, on behalf of the local authority, is that no satisfactory explanation has been offered as to why meetings have not taken place between the legal representatives and the Applicants. I understand that it would not necessarily be routine for the Official Solicitor, or a solicitor acting on his behalf, to make contact with the relevant child prior to the obtaining of records. This will be a matter of judgment of the Official Solicitor, in respect of which a number of factors will need to be carefully weighed. Circumstances will vary. The child may be unable to contribute very much useful information at that stage and/or such a meeting may cause unnecessary distress. In this instance, it is necessary to take account of the fact that a lawyer's interview with B would hardly be likely to yield valuable information as to the impact upon him of events which took place when he was 3, 4 or 5 years of age. Furthermore, the difficulties from which he suffers, and which may well have made him uncommunicative, could have been caused by the traumas of those early years. If so, that is a reason to press on with the enquiries and not for simply giving up the struggle.
11. As I have said, the Applicants had been in the care of the local authority for two and a half years before the judge referred the matter to the Official Solicitor. Thereafter, a further period of more than four years has elapsed. The older of the two Applicants is nearly 18 years of age. These are all points to which the local authority has drawn attention. Essentially, however, Mr Levinson for the Applicants argues that matters have to be judged as the position now stands. It is not for me, or for a court of first instance, to deprive the Applicants of a remedy, if it would otherwise be appropriate to grant it, simply because the enquiries carried out on behalf of the Official Solicitor might have been pressed with greater vigour. It may be that if proceedings are commenced on behalf of A in the next few months, she will decide to abandon them or not to pursue them when she attains her majority (with, at least in theory, possible costs consequences). Nevertheless, says Mr Levinson, that is not relevant for present purposes. The court must consider the position as it stands today and as it stood when the application was heard before the Master. That must be right.
12. If the appeal succeeds, and the resulting advice is positive, then it may well become necessary for either or both of the Applicants to be interviewed and examined with a view to the preparation of a medical report. That barrier will have to be addressed in the light of circumstances then prevailing.
13. The application for pre-action disclosure was dated 29 June 2011 and it came first before Master Leslie on 10 January of this year. On that occasion, he adjourned the hearing, suggesting that it would be appropriate to obtain further information, not least as to the whereabouts of the Applicants at that stage, and also to establish whether any evidence of psychological damage could be produced in relation to the relevant period; that is to say, the period following the date upon which ex hypothesi it became negligent for the local authority to leave the Applicants in the care of their parents. Following the adjournment, further evidence became available, to which I have already referred. Although at the adjourned hearing on 20 April the local authority took a neutral position, the Master refused the application.
14. Before turning to the grounds upon which his decision is appealed, I should consider the jurisdiction he was exercising in a little further detail. The relevant provision is contained in CPR 31.16, as follows:

"(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

(c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs."

15. In the present case, it is only the provisions of 3(d) that are controversial. I was helpfully provided with such guidance from the authorities as is available. I was referred, for example, to Philip Rose v Lynx Express Ltd, Bridgepoint Capital (Nominees) Ltd [2004] EWCA Civ 447, where Peter Gibson LJ, giving the judgment of the court, made the following observations at [3]:

" … At the pre-action stage, the parties may not have thought through or seen all the implications of the issue in the same way as they will have done by the time when it comes to be tried. Any pre-action determination will have to take place in the light of assumptions about the factual circumstances, which may prove incomplete or incorrect. The actual factual circumstances, when known, may throw up problems about a particular construction of the articles which may not have been apparent at the pre-action stage. We think therefore that courts should be hesitant, in the context of an application for pre-action disclosure, about embarking upon any determination of substantive issues in the case. In our view it will normally be sufficient to found an application under CPR 31.16(3) for the substantive claim pursued in the proceedings to be properly arguable and to have a real prospect of success, and it will normally be appropriate to approach the conditions in CPR 31.16(3) on that basis."

16. Also drawn to my attention was the well known judgment of Rix LJ in Black v Sumitomo Corporation [2003] 3 All ER 643, and especially at [87] et seq. I have borne these passages very much in mind in addressing counsel's helpful submissions.
17. As the Master had in mind, it is elementary that for a claim in negligence to succeed it is necessary to demonstrate, not only that there has been a breach or breaches of duty, but also that damage has flowed from any such breach. In a case such as the present, therefore, it would in due course be necessary to show that harm had been suffered by the relevant claimant during the period following the alleged breach of duty by the local authority (i.e. harm which was identifiable as being additional to that suffered beforehand and which was capable of being reflected in an award of damages). This was the stumbling block which troubled the Master.
18. What he said at paragraphs [3] and [4] was this:

"The allegation is that they [the Respondent] left [the Appellants] in the care of their violent and abusive parents (that is to say abusive in the sense that they argued and beat each other in front of [the Appellants] or within earshot of [the Appellants] on an almost daily basis) without intervening. The evidence was that in a period of about three years, 30 of these incidents had actually been reported to the police. That is how serious the position was and I suspect that that is why, in the end, the guardian ad litem and the judge came to the conclusion that they did, that the Respondent local authority had failed in its duties …

… I am not under-estimating the damage that can be caused by the exposure of young children to this sort of atmosphere psychiatrically but there is no evidence whatsoever to suggest that any additional damage has been or was caused by the period of time such as it may have been during which these children were with their parents when they ought to have been removed. That may be a difficult task to give an opinion about, but just because it is a difficult task does not mean it will not have to be undertaken if these proceedings go ahead and a claim is made."

19. The Master had already noted, in [1], that "In the words of the 1989 Act, 'significant harm' was or was likely to be caused to them, in particular as a result of the drunken and violent behaviour of their parents which they witnessed, it would appear, almost daily". It is necessary to note that significant harm may constitute a sufficient injury to found a personal injury or professional negligence claim – even if it cannot be categorised as a psychiatric illness or disorder. This was the view of Wall LJ expressed in D v Bury MBC [2006] 1 WLR 917 at [91], although the Master thought the discussion in this passage rather too "cursory" to be of assistance in carrying out his task. Nevertheless, the point is an important one. The concept of "significant harm" is relatively wide and is not to be confined by reference to definable psychiatric illness or disorder.
20. The Master referred, at [13], to " … a failure to show, by evidence, that the tort has been completed" and he concluded that the proceedings were not going to succeed. This comes close to what Peter Gibson LJ had described as embarking upon the determination of a substantive issue. The Master effectively decided that the disclosure sought here would not lead to a psychiatrist saying that any delay by the local authority in removing the children " … caused a significant or different result or a worse result in their psychiatric condition". Not only does this pre-judge the outcome of disclosure; it also proceeds on the basis that an identifiable "psychiatric condition" is a sine qua non of establishing compensatable harm. At [9], he said that what was required was a "diagnosable psychiatric injury".
21. A number of criticisms are made by Mr Levinson of the Master's reasoning. They were summarised in his skeleton argument as follows:

"Having found that the parenting of the Appellants caused them harm, the Master should have found that, on the balance of probabilities and for the purposes of the pre-action disclosure hearing, harm was caused throughout, at least, the latter part of their time living with their parents and so during the period of culpable delay. This is because:

a) The threshold for establishing a complete cause of action for the purposes of a pre-action disclosure application is low. The Master applied a test that was too strict.

b) The Appellants could not adduce evidence that they were injured during the period of culpable delay without having first identified that period, for which the records were required.

c) The fact that [the] Guardian and judge in the care proceedings were critical of the delay in commencing proceedings was highly supportive of the argument that harm was caused during the period of delay.

d) The Master had found that 'significant harm was or was likely to be caused to [the Appellants], in particular as a result of the drunken and violent behaviour of their parents which they witnessed, it would appear, almost daily'. Having found that harm was being caused almost daily, the Master should have found that harm was caused during the period of culpable delay whenever that may have commenced.

e) It was erroneous for the Master to conclude 'The fact of the matter is this that disclosure … will not lead to a psychiatrist saying or help him or her say that the prolonging of the children's time in the care of their parents caused a significant or different result or a worse result in their psychiatric condition…' Documentary evidence of the Appellants' treatment and presentation during this period would be extremely useful in this regard.

f) The Master should have been satisfied on the available evidence that actionable harm had been suffered by the Appellants (or either of them) during the period of delay. The Master had identified exposure to abuse and neglect and should have accepted, at this preliminary stage, that it was probable that every instance of harm had made a contribution to the injury. The Master should have taken judicial notice of the fact that increased exposure to neglectful and abusive parenting is likely to increase the extent of injury.

g) Having indicated at the first hearing 'if there were to be … evidence that [the Appellants] had suffered some psychiatric or psychological damage, then it seems to me that this application would succeed', the Master should have granted the application at the adjourned hearing on the basis of the evidence before him."

22. I agree that there is a logical flaw in the Master's approach, which is concerned with whether the horse was properly placed in relation to the cart. In cases such as this, the whole point of an application for pre-trial disclosure is that the files should be scrutinised in order to determine when a competent local authority should have applied for removal of the relevant child or children. Until that point has been identified, it will not be possible to determine how much harm (if any) has been suffered thereafter. Nor, it follows, would it be possible to assess the extent to which that harm is additional and/or such as to merit, in itself, an award of damages.
23. As I have noted, the Master recognised expressly that "significant harm was likely to be caused … as a result of the drunken and violent behaviour of their parents which they witnessed, it would appear, almost daily". That would, almost certainly, include harm incurred following the hypothetical breach. Accordingly, it seems to me that this is sufficient to pass the test identified by Peter Gibson LJ (i.e. "a real prospect of success"). It is difficult to envisage how at this stage the case could be formulated in any greater detail. I believe that the Master was setting the bar too high. It is thus open to me, sitting as an appellate tribunal, to exercise the court's discretion afresh.
24. It may be that, upon closer examination, causation will prove (as the Master anticipated) an insurmountable problem. Perhaps the long delay will be a factor in making any such assessment. For the moment, however, I am simply concerned with pre-trial disclosure and, in my judgment, there is sufficient material to justify exercising the court's discretion in favour of the Applicants.
25. The appeal will be allowed and I will grant the order.