Striking out - applications to strike out claims of misfeasance in public office and negligence
Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
Between |
Badrul Huda |
Plaintiff |
And |
Minister for Health and Social Services |
Defendant |
Advocate I. C. Jones for the Plaintiff.
Advocate B. H. Lacey for the Defendant.
CONTENTS
|
|
Paras |
1. |
Introduction |
1-48 |
2. |
Submissions |
49-70 |
3. |
Decision |
71-111 |
judgment
the MASTER:
1. This judgment contains my reasons for my decision in respect of an application by the defendant to strike out claims by the plaintiff alleging misfeasance in public office and alternatively seeking to strike out a claim in negligence.
2. The plaintiff is an osteopath and has worked in Jersey for a number of years. In addition to osteopathy he also performs colonic irrigation.
3. What led to the plaintiff's claim was a complaint made by one of his patients referred to in the order of justice as "Patient A" whom the plaintiff had treated on a number of occasions with colonic irrigation. The plaintiff's order of justice refers to the plaintiff taking a detailed record of Patient A's history including noting that Patient A was suffering from anorexia and depression and that she was seeking treatment due to bloating and severe constipation. The plaintiff also avers that at no stage during treatment did Patient A raise any complaint with the plaintiff about his approach.
4. In 2016, Patient A was admitted for psychiatric treatment. During that admission the fact that Patient A had received treatment from the plaintiff was disclosed leading to a safeguarding alert being raised as described later in this judgment.
5. The safeguarding investigation led to a report to the plaintiff's professional body, the General Osteopathic Council ("GOC"), as a result of which the plaintiff was suspended from practice.
6. The plaintiff in his skeleton argument summarised his claim at paragraphs 2.2 to 2.5 as follows:-
"2.2. The Plaintiff's case is that the Defendant had a duty to investigate the complaint properly, in particular pursuant to its own procedures, and as a matter of natural justice an obligation to inform him of the complaint. Most importantly the Defendant was required to allow the Plaintiff to respond to the same [Tab 1/Pages 3 to 8]; the Defendant, by its own admission, did not do this.
2.3. The Plaintiff's case is that the investigation was cursory at best and at no stage prior to the report to the GOC was he informed of the complaint and consequentially was denied his right to respond. When the matter was eventually heard by the GOC it was found that there was no case for the Plaintiff to answer, something the Plaintiff asserts would have been the position had the Defendant undertaken a proper investigation.
2.4. The Plaintiff claims that the Defendant owed him a duty of care, delineated by its own policies, to properly investigate the complaint and to inform him of the same and allow him to respond. That the failure to properly investigate, inter alia was a breach of that duty of care as was, in that context, the report to the GOC. Further, it is asserted by the Plaintiff that the deliberate or reckless failure of the Defendant to follow its own policies and the rules of natural justice amounted to a misfeasance.
2.5. The product of that failure was the Defendant's report to the GOC and the foreseeable loss that such a report caused. Although it is not necessary to establish misfeasance, the Plaintiff relies upon the partial and redacted disclosure provided by the Defendant of emails from a senior member of its staff which suggest that he was an unscrupulous practitioner exploiting members of the public."
7. Ultimately the professional conduct committee of the GOC found the plaintiff had no case to answer.
8. Following the GOC hearing dismissing the complaints against the plaintiff, the plaintiff issued defamation proceedings in England against the defendant. In a decision of Nicklin J reported at Huda v Wells [2017] EWHC 2553, the defendant successfully challenged the permission granted to serve the defendant out of the jurisdiction. Later in this judgment I analyse the effect of what was decided by the English High Court's decision and the relevance of that decision to the claim the plaintiff now seeks to bring in Jersey.
9. I now set out the relevant events that occurred. This description, as is normal in a strike out application where no reasonable cause of action is alleged, is principally based on the factual allegations contained in the plaintiff's order of justice. However, in this case the defendant filed an answer on 30th August, 2019 where many of the factual events that occurred are admitted albeit their legal effect is hotly contested. Also during the hearing Advocate Lacey helpfully provided a chronology which was in large measure agreed. The relevant events following Patient A disclosing receipt of treatment from the plaintiff are therefore as follows.
10. As a result of the disclosure by Patient A of the plaintiff's treatment, a safeguarding alert was raised by Lorraine Wells, Clinical Team Leader Jersey Adult Mental Health Service (Ms Wells). The alert form completed included the following statements:-
""Discussed with Dr Hendricks and team who believe this risk is further increased by putting the body into shock and could result in cardiac arrest'
Further, in a box entitled 'Any other information' the following is recorded:
"This is an unusual case that raises ethical and moral concerns. [Patient A] is deemed to have capacity but often makes the wrong choices. The wider implication is this practice being carried out in the face of such high risks as [Patient A] is conspicuously emaciated and underweight."
11. On 7th July, 2016 a meeting took place between the psychiatrist treating Patient A and Ms Wells as well as others.
12. On 8th July, 2016 a safeguarding meeting was conducted; paragraph 16 of the order of justice sets out that two actions were to be taken as a result of the safeguarding meeting as follows:-
"a. Dr Hendricks or Dr Mair, (the latter was Patient A's GP) was to contact the Plaintiff and indicate the treatment be discontinued; and
b. Ms Campfield was to contact the Plaintiff to inform him of the safeguarding alert and ask if he had any other severely underweight patients; this was never done."
13. It is common ground that the plaintiff was not in fact contacted by Ms Campfield pursuant to the above action.
14. It is also admitted by the defendant that at the meeting on 8th July, 2016 it was decided that the plaintiff would be referred to the GOC.
15. In an email also dated 8th July, 2016 from Miss Christine Blackwood, Head of Professional and Care Regulation in Jersey ("Miss Blackwood"), it is alleged that Miss Blackwood recommended steps to support a referral to GOC which included:-
"a. the medical doctor who was to contact the Plaintiff was instructed to discuss medical/clinical management, then should follow up with an email to the Plaintiff and then provide a statement/email to the Defendant setting out the Plaintiff's response/treatment rationale.
b. that Ms Campfield provide a written statement setting out any response the Plaintiff makes following contact between them with regard to safeguarding."
16. On 12th July, 2016 Ms Campfield emailed Patient A's General Practitioner asking whether the GP or Dr. Hendricks had spoken with the plaintiff and also indicating that Miss Campfield wished to alert the plaintiff to the safeguarding concern. This did not occur.
17. Patient A's GP replied on 13th July, 2016 stating that the plaintiff had informed Patient A's GP that the plaintiff had not treated Patient A for four months and agreeing that he would not do so now. Patient A's GP indicated he had not told the plaintiff of the safeguarding concern.
18. On 13th July, 2016 Miss Campfield and Ms Wells met Patient A to discuss safeguarding issues.
19. On 25th August, 2016 Patient A, by an email, complained to Senator Green, Jersey's then Health Minister, complaining that her safeguarding concern had not been responded to.
20. This led Dr Susan Turnbull, the Medical Officer of Health (Dr Turnbull), to email Senator Green in response the same day stating as follows:-
"This seemingly very vulnerable [Patient A] appears to have been significantly let down, as [Patient A] spells out in a measured way in [Patient A's] email to you. As MOH I am very concerned that Huda, left unchecked, is quite likely to be risking the health of other vulnerable (gullible) islanders, possibly believing that he has medical credentials."
21. The plaintiff strongly criticises the contents of this email. The defendant disputes the plaintiff's criticisms.
22. A referral to the GOC was completed. It is accepted that the plaintiff was not informed of the proposed referral at any time prior to the referral being made. It was common ground the referral was received by GOC on 6th September, 2016. It is in issue when the referral was completed and in particular whether it was on 24th August, 2016, being the date of the referral or whether the referral was completed after Patient A's email to Senator Green.
23. The referral contained the following statement:-
""There have been concerns raised via a patient of Mr Huda's that he is administering colonic irrigation to anorexic patients:"
24. In relation to this complaint the defendant in its answer admits that the defendant was only aware of the plaintiff treating one patient with anorexia and the last treatment had been some four months prior to Patient A's GP consulting the plaintiff.
25. On 21st September, 2016 Dr Turnbull emailed Miss Blackwood with the following:-
""I share your concern that the GOC may not have been provided with sufficient information to trigger the serious concerns they ought to have about their continuing registration of this apparently unscrupulous practitioner who is bringing the GOC and its Register of Osteopaths into disrepute.
...In the meantime, given the gravity of what has happened to [Patient A] Huda seems to me quite likely to be placing other vulnerable clients at risk, continuing with the badge of respectability of being a registered osteopath .""
26. The plaintiff alleges in relation to this email the following at paragraph 28 of its order of justice:
"It is once again asserted that Dr Turnbull had no, or no proper basis for asserting that the Plaintiff was placing his patients at risk that he was unscrupulous or in respect of her other pejorative comments about him."
27. The defendant accepts that there was no evidence in the possession of the defendant or his employees about the plaintiff's treatment of other patients. The defendant's position is summarised at paragraph 27 of the answer as follows:-
"27. Paragraph 28 is denied. Dr Turnbull in the said email of 21 September 2016 was expressing her genuinely held professional medical concerns further to the administration of colonic hydrotherapy to Patient A, who was known by the Plaintiff to be suffering from anorexia."
28. On 25th October, 2016 the plaintiff denied the allegations made by the GOC.
29. On 31st October, 2016 Patient A provided a statement to the GOC in support of the complaint.
30. On 7th November, 2016 the plaintiff was suspended from practice. The defendant wrote to the plaintiff indicating that he should cease to practice osteopathy in Jersey during the period of suspension.
31. On 2nd December, 2016 the GOC wrote to the plaintiff to indicate that it had found a case to answer.
32. On 5th January, 2017 following a challenge by the plaintiff, his suspension was lifted by the GOC on certain undertakings. The initial suspension and undertakings were recorded on the GOC's website.
33. The final hearing took place on 19th-25th July, 2018. Following an application on behalf of the plaintiff that there was no case to answer, the complaint against the plaintiff was dismissed.
34. The plaintiff's complaints against the Minister arises out of a failure to follow a policy introduced by the Minister entitled "Safeguarding Adults Process" ("the policy").
35. Chapter 13.1.3 of the policy is headed "Involving the person alleged to have caused harm". The first paragraph defines the scope of this chapter and states "The focus of Jersey's Multi-Agency Policy and Procedures for Safeguarding Adults at Risk is the Adult at Risk. However, it is important that others affected have their rights respected and are appropriately involved."
36. Chapter13.1.3 of the policy contains the following:-
"1 Individuals rights;
Wherever a concern or allegation of harm relates to an individual service that individual/service has a right to a fair opportunity of reply as part of the investigation process.
The right to be advised and the right of reply to information that relates to individuals is covered by legislation such as the Human Rights Law and Data Protection Law and extends to all individuals. This will also need to be balanced with risks, there may be for the adults at risk and/or others in sharing and/or not sharing information.
It is particularly important to carefully consider at every stage of the process how, when and to what to degree it is possible to inform the person/service alleged to have cause harm and the details of the allegation and the progression outcome of the investigation. Consideration should be given as to whether advice should be sought regarding this from the Law Officers' Department.
Reference is made throughout the procedures to the involvement of the person/service alleged to have caused harm at all stages of the safeguarding process." and
3. Right of reply
A case conference discussion meeting cannot conclude an investigation or determine an outcome of an investigation into an allegation against an individual/service unless that individual/service alleged to have caused harm has had an appropriate right to reply to the allegations investigated.
If it emerges that an appropriate opportunity to respond has not been provided to the person/service alleged to have caused harm, other than in exceptional circumstances (for example where the person alleged to have caused harm is deceased) the case conference/discussion should be changed to a further strategy discussion meeting to agree how this will be done.
If there are compelling reasons regarding why a person/service alleged to have caused harm should not be informed or involved the investigation, consideration should be given as to whether advice should be sought from the Law Officers' Department."
37. Section 8 of the same chapter contains the following two paragraphs:-
"As part of the Safeguarding plan a referral to the professional bodies should be considered where the conduct of an individual registered with a professional body has been the subject of an investigation. The professional bodies could include the Health and Care professions councils; nursing council (NMC); General medical council (GMC).
Where a decision is made that it is appropriate to refer an individual to a professional body with which they are registered following the conclusion of an adult safeguarding investigation it is the senior safeguarding practitioner's responsibility to ensure that the person being referred is advised of this prior to the referral being made".
38. What is at the heart of the plaintiffs' complaint is that the defendant failed to follow his own safeguarding procedures. The plaintiff was not informed of the investigation, was not given a right of reply and was not informed of the referral to the GOC until after it had occurred. This led to the following allegations at paragraph 26 of the order of justice:
"26. In breach of the Defendant's adult safeguarding policies:
a. The decision to report the Plaintiff to the GOC had been taken on 8 July 2016 prior to Patient A being interviewed;
b. The fact that Patient A had capacity to make an informed choice about the treatment she sought and received was not considered nor was it considered whether there were public interests, legal restrictions or duty of care considerations in pursuing a safeguarding investigation;
c. the Plaintiff had not been afforded a 'right of reply' within the safeguarding investigation or otherwise;
d. No Safeguarding Investigation Report had been produced;
e. The decision to refer the Plaintiff to the GOC and the referral itself was taken before the conclusion of the safeguarding process and the preparation of a safeguarding report and/or before any or any other adequate investigation into the substance of what became the referral;
f. The Plaintiff was not informed of the Defendant's intention to refer him to the GOC or otherwise given an opportunity to respond to the concerns being expressed."
39. The defendant's answer to paragraph 26 is set out in paragraph 25 of the answer as follows:-
"25. Of Paragraph 26, it is denied that the events outlined in Paragraph 26 (not all of which are admitted) were in breach of the Safeguarding Procedure. The purpose of the safeguarding policies and procedures is for the protection of the person identified as being "at risk". It is neither a disciplinary nor regulatory investigation. There is no requirement to conduct an investigation prior to a referral to the GOC or other regulatory body, nor is there a "minimum level of seriousness" required in order to justify such a referral. The role of consideration and investigation of the referral following a complaint falls to the GOC."
40. However, it was accepted by Advocate Lacey for the defendant that the defendant's representatives did not follow the procedures quoted above contained in the policy.
41. It is also right to record that the plaintiff made a complaint to the States Complaints Board (the SCB"). The findings of the SCB (which of course do not bind the Royal Court) are set out at paragraph 42 of the order of justice. However, the defendant does not agree with the findings; hence the present dispute.
42. The allegations of misfeasance are summarised at paragraph 44 of the order of justice as follows:-
"44. The decisions and actions set out hereinabove were those of a public officer or a number of public officers, exercising their powers as such an officer maliciously, with bad faith and/or with an improper purpose, or reckless as to the limits to or restraints upon their public power or authority, thereby intending to injure the Plaintiff and/or in the knowledge that the Plaintiff would be injured and/or with reckless indifference to the likelihood of injury.
PARTICULARS OF MALICE
a. deliberately and knowingly or recklessly failed to undertake any or any adequate investigation of the safeguarding alert and or the evidence relevant to a GOC referral in line with the Defendant's own policies or otherwise. In particular:
i. failed to interview or otherwise obtain evidence from Patient A prior to deciding to make a GOC referral;
ii. failed to interview or otherwise obtain evidence from Patient A's mother prior to making the GOC referral;
iii. failed to obtain any or any adequate medical opinion as to the risks of performing colonic hydrotherapy on Patient A;
iv. failed to notify the Plaintiff of the safeguarding alert;
v. failed to interview or otherwise give the Plaintiff the opportunity to reply to the matters alleged against him within the safeguarding alert or otherwise;
vi. failed to take any or any adequate steps to ascertain what was the particular nature of the procedure which the Plaintiff performed on Patient A;
vii. failed to obtain any or any adequate evidence as to whether the Plaintiff was holding himself out as a medical doctor;
viii. failed to obtain the Plaintiff's notes of his consultations with and treatments of Patient A;
ix. failed to visit the Plaintiff's clinic or otherwise ascertain whether the factual assertions made by Patient A were or could be correct.
b. deliberately and knowingly or recklessly failed to make any or any reasonable attempt to test the accuracy of Patient A's account notwithstanding that it was apparent she was suffering from psychiatric/emotional difficulties and gave contradictory accounts;
c. deliberately and knowingly or recklessly sought to obtain evidence in support of a referral to the GOC in an underhand and dishonest manner and/or in way which was intended to be partial by (Christine Blackwood email 8 July 2016):
i. seeking to instruct Dr Mair and/or Dr Hendricks to obtain an account from the Plaintiff of his management of Patient A without disclosing it was for the purposes of a GOC referral;
ii. having Ms Campfield obtain an account from the Plaintiff of his management of Patient A without disclosing it was for the purposes of a GOC referral;
iii. having Ms Wells seek to obtain documentation which supported the contention that the Plaintiff was holding himself out as a medical doctor.
d. deliberately and knowingly or recklessly and in breach of his own policies failed to contact the Plaintiff prior to the GOC referral and thereby obtain his response to the matters which the Defendant proposed to refer;
e. determined that the Plaintiff had exposed Patient A and/or other patients to a significant risk without taking even the most basic steps to ascertain whether that was the case;
f. making the said referral to the GOC knowing that the Defendant's procedures had not been followed and that, the Plaintiff had not been afforded an opportunity to know of and respond to the allegations against him and without the most basic investigation being undertaken;
g. making, continuing or bolstering the said referral to the GOC on the untrue and unsupportable basis that the Plaintiff was an unscrupulous practitioner, that he was exploiting the vulnerable and was deliberately or recklessly endangering the safety of his patients.
h. further or in the alternative, making, continuing to make or seeking to bolster the referral out of an improper motive: the Defendant was not and could not be motivated by a reasonable belief that it was necessary to refer the Plaintiff to the GOC and/or that there was adequate evidence to make it necessary but rather as a result of the Defendant 's knowledge and concern that it had failed to conduct an adequate safeguarding investigation , to contact the Plaintiff, to prepare a final report and to inform Patient A of the outcome of such investigation as had been undertaken;
i. further or in the alternative making, continuing to make or seeking to bolster the referral out of an improper motive: this motive was not that it could be reasonably believed to be necessary and/or that there was adequate evidence to make it necessary but rather because Patient A had complained to the Minister of Health about the Adult Safeguarding unit's failure to progress the investigation.
j. undertook the safeguarding investigation and the referral to the GOC in a way which entirely failed to comply with the Defendant's own policy to be open minded and consider every possibility;
k. In the premises, deliberately and knowingly or recklessly failed to comply with the most basic principles of natural justice;
I. In all the circumstances, deliberately and knowingly or recklessly caused the Plaintiff loss, injury and damage for improper motives and/or by knowingly failing to follow his own procedures."
43. The persons alleged to have acted maliciously on behalf of the defendant are Miss Wells, Miss Campfield, Miss Blackwood and Dr Turnbull.
44. The allegations of negligence are at paragraph 47 as follows:-
"47. Further or in the alternative the Plaintiff was caused injury loss and damage by way of the negligence of the Defendant his officials, officers, employees, servants and/or agents:
PARTICULARS OF NEGLIGENCE
a. Reliance is placed upon the Particulars of Misfeasance as representing negligence on the part of the Defendant, his officials, officers, employees, servants or agents ;
b. In all the circumstances the Defendant failed to take any or any adequate care in:
i. the manner he conducted the safeguarding investigation;
ii. the adherence to his own safeguarding investigatory procedures;
iii. determining to refer the Plaintiff to the GOC.
c. In the circumstances failed to take or any appropriate care for the Plaintiff in his consideration of the safeguarding alert and the GOC referral."
45. The plaintiff's complaint is that the referral and his suspension resulted in damage to his reputation and to his business for which he seeks damages.
46. The defendant's case on misfeasance is summarised at paragraphs 39 and 40 of its answer as follows:-
"39. Paragraph 44 is denied and the particulars of malice each denied. There was no exercise of power on behalf of any party on behalf of the Defendant, which could amount to misfeasance in public office. There was no bad faith or malice, or evidence thereof, whatsoever. The exercise of the Defendant's powers and the decision to refer the matter to the GOC were entirely appropriate, proper and proportionate. The actions of the Defendant were at all times taken in the best interests of safeguarding Patient A and in ensuring any concerns, including possible harm to the wider public, were addressed appropriately.
40. In response to the allegations of malice at Paragraph 44, those issues have previously been determined by a court of law and are choses jugées or res judicata and it is an abuse of process now to raise them again. Previous proceedings were issued by the Plaintiff against the States of Jersey out of the High Court of Justice of England and Wales when claims were made of defamation (libel) and malicious falsehood based on the said referral to the GOC. In the judgment dated 16 October 2017, delivered by the Nicklin J. the said proceedings were dismissed and it was held:-
"The failure to contact the Claimant and/or to carry out any investigation do not raise a probability of malice. The Defendants were not the investigators (and even had they been, a failure to contact the Claimant would not have been probative of malice). They were people to whom disclosures were made from Patient a, someone in respect of whose health and welfare they had an interest. They then reported what they had been told to the regulator of the person the subject of the complaint. It was for the GOC to investigate the complaint. If the complaint progressed, in accordance with the GOC's rules, the Claimant would be given an opportunity to comment upon and answer the allegations."..... "the Claimant has no real prospect of demonstrating that any of the Defendants were malicious. The malice case is hopeless".""
47. The defendant also denies negligence at paragraph 42 of its answer as follows:-
"42. Any negligence on behalf of the Defendant is denied. In any event, the claim is ill-founded. There was no duty of care owed to the Plaintiff in the circumstance, upon which a claim of negligence can be founded upon. The duty of care in the situation is owed to the adult at risk of harm. Furthermore, seeking to base a claim of negligence on the Particulars of Misfeasance in Public Office is an abuse of process pursuant to the said findings of the High Court of Justice."
48. In relation to whether the defendant caused the plaintiff any loss if misfeasance or negligence is established the defendant pleads at paragraphs 44 and 45 as follows:-
"44. The Defendant was not required or obliged to undertake an investigation (including the provision of a right of reply) prior to making the referral to the GOC. The role of investigation, if the GOC considered the threshold criteria were met, was for the GOC. It is denied that the Defendant was under a duty to notify the Plaintiff of the referral to the GOC and, in any event, the Defendant's actions or lack of action were not causative of any prejudice to the Plaintiff. The safeguarding concerns of the Defendant were such that a referral was necessary and justified to be made for the GOC's consideration.
45. It is denied that the Plaintiff's suspension from practice was as a direct consequence of the referral. The referral did not automatically lead to his suspension/the undertakings given/or any alleged loss. The GOC has its own procedures for dealing with complaints and at the initial screening phase determined that the complaint met the threshold and was to be investigated and the Plaintiff notified. In the Plaintiffs case, only once the matter had reached the Investigating Committee Stage was an Interim Suspension Hearing held, at which it was concluded the Plaintiff should initially be suspended. This hearing occurred two months after the Defendant's referral was received by the GOC. Interim Suspensions are a matter for the GOC, they by no means follow as a matter of course or automatically following every referral."
49. Very fairly at the outset of her submissions Advocate Lacey accepted that the defendant's own procedures had not been followed and the plaintiff was not contacted as he should have been. She also accepted that there were no material facts that could be pleaded to show that the Medical Officer of Health had evidence to support the contents of her email of 25th August, 2016 to the Minister.
50. She explained that the purpose of the adult safeguarding procedure was to safeguard vulnerable adults. It followed an approach set out in the Care Act in force in the United Kingdom. She therefore argued that any duty of care was only owed to vulnerable adults and there was a public interest in medical professionals being allowed to act without fear. Any duty of care was only owed to the patient and not to the plaintiff by analogy with the approach taken for parents suspected of abuse in D v East Berkshire Community Health NHS Trust and others [2005] 2 AC 373.
51. The Medical Officer of Health was simply expressing a personal view, as she was entitled to, based on information supplied by colleagues. The pleaded case was therefore insufficient to amount to bad faith or malice.
52. Effectively what was alleged by the plaintiff was a conspiracy. The chronology of events was insufficient for such an allegation to be sustainable.
53. In relation to the claim of misfeasance in public office, Advocate Lacey criticised the lack of particularity about who was said to have acted maliciously, in particular if targeted malice was alleged.
54. The requirements to found the tort of misfeasance in public office were set out in Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 followed in Jersey in Syvret v Chief Minister, SEB, SOJ and AG [2011] JLR 343 at paragraphs 56 and 57, were a high threshold. The admitted procedural breaches by the defendant's representatives did not meet that threshold. All the defendant's employees were responding to a safeguarding situation. There was nothing to show that anyone was aware they were acting outside their powers.
55. In relation to the scope of any duty of care when a body was acting to safeguard individuals, it was important that no duty of care was owed which would restrict a discharge of safeguarding obligations by the defendant. This was why no duty of care was owed to the parent in the East Berkshire decision. She referred me in particular to paragraphs 85 and 137 of that decision.
56. The obligation contained in the safeguarding procedure to notify a medical professional about a referral did not give rise to a duty of care, because the defendant was acting in a safeguarding situation. Avoiding conflicts of interest involving vulnerable adults meant that the position of such adults was paramount. The defendant and his employees did not want their hands tied due to a duty of care being owed to a medical professional.
57. In addition, the defendant argued that he had no power to regulate medical professionals; all the defendant could do was make a referral and it was then a matter for the appropriate professional body whether or not to discipline a medical professional. No duty of care was owed in making the referral because of the context of safeguarding vulnerable adults.
58. Advocate Jones firstly reminded me of the high threshold to strike out a claim. He characterised the submissions made on behalf of the defendant as matters that could only be determined at trial as the question of whether a duty of care was owed was a mixed question of law and fact.
59. Notwithstanding his pleading Advocate Jones accepted that the defendant was protected while there was an investigation. The purpose of the safeguarding policy was to allow the defendant to say that no duty of care was owed as long as the policy was followed. Advocate Jones therefore argued that because the policy was not followed a duty of care arose.
60. The point of consulting a medical professional was because of the significant effect a referral to a regulatory body might have and that in all likelihood of a referral could lead to some form of interim suspension and, if allegations were substantiated; disciplinary sanction.
61. In relation to how safeguarding investigations were conducted, he relied on the defendant's policy stating that a referral to a relevant medical body should not take place until an individual was given an opportunity to reply. Advocate Jones therefore argued there was a fundamental difficulty with the defendant's position because no right of reply was offered. This meant that whether or not a duty of care was owed was a triable issue. This was because the plaintiff was entitled to complain about the defendant's failure to apply his own policy. The complaint was about the manner in which the investigation was conducted and the lack of a proper process. It was a failure to follow that process that allowed the plaintiff to bring the present proceedings.
62. The present situation did not lead any floodgates because the failure was one of consultation. This was an extreme case where there was a total failure to follow the process.
63. Advocate Jones also reminded me that the fact that the plaintiff might not succeed at trial is not a basis to strike out a claim. Neither was a lack of precedent to cover the present circumstances.
64. What Advocate Jones did accept was that any duty of care was limited. It was the failure to follow process and to offer the plaintiff a right of reply that he argued led to a duty of care being owed.
65. Advocate Jones's case was that by issuing the policy the defendant had assumed a responsibility to the defendant to allow him a right of reply. This was arguable and was an area of law that not yet been developed in Jersey. This also justified a trial.
66. In relation to misfeasance in public office, the threshold of reckless indifference was enough. His client's case was that no thought was given about the impact of a referral on the plaintiff despite the policy and therefore the approach of employees on behalf of the defendant was reckless. Alternatively, thought was given in which case a deliberate decision not to consult the plaintiff was taken which was targeted malice.
67. The plaintiff's case was not doomed to failure. While there was no guarantee it would succeed and it might fail, it was not an obvious case to justify striking out the plaintiff's claims.
68. In so far as the defendant in its skeleton argument criticised the drafting of paragraph 44 of the order of justice, that it was not clear which employees were deliberately acting in breach of the policy rather than acting recklessly, he contended he was entitled to plead the plaintiff's case in the alternative because whether or not liability was established ultimately depended on what each individual referred to my have said. The approach was not scattergun. All the individuals understood the case they had to meet.
69. If the defendant felt the case was not clear requests for information could be made which had not occurred.
70. In reply, Advocate Lacey emphasised that to make allegations that individuals in public positions were deliberately not applying the policies was a serious allegation, for which where there was no evidence.
71. In relation to the applicable test on a strike out application counsel agreed this was contained in Trant v AG and Others [2007] JCA 073 at paragraphs 27 as follows:-
"27. The test on an application to strike out is well established. It is only where it is plain and obvious that the claim cannot succeed that recourse should be had to the Court's summary jurisdiction to strike out. Particular caution is required in a developing field of law. Provided that a pleading discloses some cause of action or raises some question fit to be decided by a judge, jurats or jury, the mere fact that a case is weak is not a ground for striking it out. These propositions are vouched for by a wealth of Jersey authority embracing principles deployed by the Courts of United Kingdom, see e.g. Re Esteem Settlement and the No.52 Trust [2000] JLR 119 at p.142 (we note en passant that a new regime, arguably more favourable to an application to strike out, has been introduced in England and Wales by the Civil Procedure rules)."
72. In Home Farm Developments Limited v Le Sueur [2015] JCA 242 at paragraph 29 the Court of Appeal summarised the strike out jurisdiction in this way as follows:-
"29. Applying these principles to the circumstances of the present case, the Appellants' Order of Justice should be struck out only if we are satisfied, based upon the conclusions which we can draw from the relevant documents and facts which are not in dispute, that any trial of the issues would be unnecessary because the claim would inevitably fail. In doing so, we acknowledge that in the particular circumstances of this case a distinction may made between paragraph (1)(b), which refers to a claim or pleading which is "scandalous, frivolous or vexatious", and paragraph (1)(d) which refers to "abuse of process". Whilst the former expression might, as the Deputy Bailiff referred to in Pike (at p. 37), suggest a degree of opprobrium about what has been pled, for example the making of unjustified allegations of outrageous conduct or the unreasonable inclusion of a solicitor as a defendant, we do not consider that the expression "abuse of process" necessarily carries the same connotation. In the context of striking out, we consider that a claim or pleading may be said to be an abuse of process where, after applying the test set out in Trant, the conclusion can be reached that to allow the proceeding to continue would be an unnecessary waste of the court's time because at the end of any trial the result would inevitably be that the claim would fail."
73. In Home Farm the emphasis of the Court of Appeal was on cases that "inevitably fail". This is why Advocate Jones emphasised in oral argument that the plaintiff's case should not be struck out unless it was "doomed to failure".
74. I do not consider that any distinction arises between the approach taken in Trant and Home Farm; rather the differently constituted Courts of Appeal are essentially expressing the same test albeit using slightly different terminology. In my judgment in this case the key issue is whether the claim brought by the plaintiff would invariably fail or whether it is a case that justifies a trial.
75. In relation to the tort of misfeasance in public office this is clearly part of Jersey Law (see Syvret v Chief Minister & Ors [2011] JLR 343 at paragraph 56 and 57 applying Three Rivers DC v Bank of England No.3 [2003] 2 AC 1.
76. In view of the allegations in this case, it is appropriate to set out all the elements of the tort of misfeasance as described in Three Rivers by Lord Steyn at page 191 line A to Line F as follows:-
"The ingredients of the tort
It is now possible to consider the ingredients of the tort. That can conveniently be done by stating the requirements of the tort in a logical sequence of numbered paragraphs.
(1) The defendant must be a public officer
It is the office in a relatively wide sense on which everything depends. Thus a local authority exercising private-law functions as a landlord is potentially capable of being sued: Jones v Swansea City Council [1990] 1 WLR 54 . In the present case it is common ground that the Bank satisfies this requirement.
(2) The second requirement is the exercise of power as a public officer.
This ingredient is also not in issue. The conduct of the named senior officials of the Banking Supervision Department of the Bank was in the exercise of public functions. Moreover, it is not disputed that the principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or intention: Racz v Home Office [1994] 2 AC 45 .
(3) The third requirement concerns the state of mind of the defendant
The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i e conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful. [Emphasis Added]"
77. It is clear from Three Rivers that there is a distinction between targeted malice, which requires conduct specifically intended to injure a person or persons and involves exercising a public power for an improper or ulterior purpose, and untargeted malice. The second form of liability arises where a public officer acts "knowing" there is no power to carry out the act complained of and that the act will probably injure a plaintiff. This type of misfeasance is therefore said to involve bad faith because the public office does not have an honest belief that his act is lawful.
78. Lord Steyn explored further what was meant by bad faith starting at 192 line B to G as follows:-
"The present case is not one of targeted malice. If the action in tort is maintainable it must be in the second form of the tort. It is therefore necessary to consider the distinctive features of this form of the tort. The remainder of my judgment will be directed to this form of the tort.
The basis for the action lies in the defendant taking a decision in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals. It is not every act beyond the powers vesting in a public officer which will ground the tort. The alternative form of liability requires an element of bad faith. This leads to what was a disputed issue. Counsel for the Bank pointed out that there was no precedent in England before the present case which held recklessness to be a sufficient state of mind to ground the tort. Counsel argued that recklessness was insufficient. The Australian High Court and the Court of Appeal of New Zealand have ruled that recklessness is sufficient: Northern Territory v Mengel, 69 ALJR 527; Garrett v Attorney General [1997] 2 NZLR 332; Rawlinson v Rice [1997] 2 NZLR 651 . Clarke J lucidly explained the reason for the inclusion of recklessness [1996] 3 All ER 558, 581:
"The reason why recklessness was regarded as sufficient by all members of the High Court in Mengel is perhaps most clearly seen in the judgment of Brennan J. It is that misfeasance consists in the purported exercise of a power otherwise than in an honest attempt to perform the relevant duty. It is that lack of honesty which makes the act an abuse of power."
The Court of Appeal accepted the correctness of this statement of principle, ante, pp 52-53. This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form. [Emphasis Added]"
79. Lord Steyn therefore reached the following concise conclusion at page 193 line C "The plaintiff must prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act."
80. I have referred to the above extracts because they mean that the plaintiff in the present case does not need to prove or plead that the relevant individuals acting for the defendant knew they had no power to carry out the act complained of or that they knew that the act would probably injure the plaintiff. All the plaintiff has to plead are sufficient material facts which are capable of amounting to reckless indifference. It is of course always open to a plaintiff to look to plead actual knowledge but if the requisite material facts cannot be pleaded to assert actual knowledge, this does not prevent a plea of reckless indifference. If a claim based on reckless indifference alone would invariably fail, then such an action must be struck out.
81. By reference to the chronology of the events referred to above, and the defendant's policy, the plaintiff should have been given a right of reply before the investigation was concluded. It is common ground this did not occur. This is also not a case where the defendant did not wish to contact the plaintiff and so there were no compelling reasons not to have informed the plaintiff of the investigation. Rather at the first safeguarding meeting it was agreed that Ms Campfield was to contact the plaintiff; this step was also referred to in Miss Blackwood's email of 8th July, 2016. Ms Campfield in her email of 12th July, 2016 also recorded that she wished to alert the plaintiff. Clearly therefore the officials representing the defendant were aware of the policy and the requirement to notify the plaintiff. It is also accepted that the policy was breached. The answer filed does not set out why the policy was not applied.
82. By reference to the defendant's own policy, in failing to consult the plaintiff at any stage the defendant also failed to take a step required to conclude the investigation. Instead the investigation was treated by the officials responsible as being concluded. Yet they failed to apply Section 8 of Chapter 13.1.3 of the policy and to consult the plaintiff to inform him that a referral to the GOC was being contemplated. Again the answer does not set out why this did not occur.
83. The referral to the GOC also made an allegation that the plaintiff was administering colonic irrigation to anorexic patients generally. This led to Dr Turnbull's email of 21st September, 2016 set out at paragraph 20 above where she expressed her concern that the plaintiff "left unchecked, is quite likely to be risking the health of other vulnerable (gullible) islanders, possibly believing that he has medical credentials". It is now accepted that no evidence existed to support these general allegations.
84. What therefore the plaintiff relies upon is a breach of procedures which are admitted and without any pleaded case to explain why the defendant's own policy was not applied. In my judgment only a trial can resolve whether or not the approach of the officials on behalf of the defendant in failing to apply its own procedures and in making general assertions about the plaintiff without evidence amounts to reckless indifference. I cannot conclude that this case is one that will invariably fail. Only cross-examination of the individuals will indicate why they acted in the way they did and why they failed to follow the defendant's policies. The criticisms currently advanced by the plaintiff in my judgment therefore might lead the Jurats at a trial to conclude that officials were reckless; this depends on the evidence they give and the Jurats' assessment of that evidence. I therefore conclude that it is not appropriate to strike out the plaintiff's case based on reckless indifference.
85. However, the plaintiff's claim goes further and also alleges targeted malice as well as reckless indifference. As noted above however, there is a clear distinction between targeted malice and public officials acting with reckless indifference and whether they were acting within the scope of their authority or not. I therefore have to consider whether the allegations of targeted malice are ones that justify a trial or whether they would invariably fail. This is because targeted malice, as noted above, requires "conduct specifically intended to injure a person or persons and requires an exercise of a public power for an "improper or ulterior motive".
86. In my judgment to plead targeted malice in this way requires something over and above the matters relied upon to plead misfeasance in public office based on reckless indifference. I have reached this view by analogy with cases concerning the requirements to plead fraud. In fraud cases there must be some fact of "which tilts the balance and justifies an inference of dishonesty" (See paragraphs 62 of Brakspear & Ors v Nedgroup Trust (Jersey) Limited [2018] JRC 121 applying JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm). I consider the same analysis applies to a case of targeted malice.
87. The matters relied upon by the plaintiff are those set out at paragraphs 44 c, d, e, g, h and i of the order of justice. In my judgment however, these particulars, while supporting allegations of reckless indifference, are not sufficient to allow the plaintiff in this case to go further to make allegations that the officials on behalf of the defendant were acting for an improper or ulterior motive. The matters relied upon are at best are capable of amounting to reckless indifference if accepted by the Jurats. The motives pleaded are not ulterior or improper in the sense of being specifically intended to injure the plaintiff. Rather they are equally explainable by a failure to follow procedures coupled with not caring in a manner that could be reckless about whether or not procedures were followed. What was important to the officials by reference to the chronology of events set out above was to make the referral to the GOC. The failure to inform the plaintiff and to give him a right of reply is therefore explainable by a focus on protecting others. Where there was no evidence to support this focus apart from Patient A's own treatment, no attempt to obtain such evidence, and a failure to put the proposed referral to the plaintiff, these criticisms are explainable as acts of reckless indifference i.e. a failure to think about the policy or the plaintiff's rights under that policy. This conclusion extends to the emails of Dr Turnbull of 25th August 2016 and 21st September 2016. The plaintiff's criticism of these emails is still explainable as arising from reckless indifference or even blindness and do not cross the line to sustain a case based on targeted malice.
88. What targeted malice involves is exercising a public power for reasons wholly separate and distinct from why the power exists. It requires a public official to act intentionally with the purpose of causing loss (per Lord Hobhouse in Three Rivers at page 230G-H) or out of spite or malice (per Lord Millett at pages 235 E-F of Three Rivers) or for an improper or ulterior motive (per Lord Steyn). In this case it is clear from the policy itself that the power to make referrals exists to protect vulnerable adults. A failure to apply that policy at all in most cases will therefore be explainable by a claim based on the second limb of the tort of misfeasance in public office which only requires reckless indifference. The first limb of targeted malice therefore requires something extra to be pleaded. In this case it would require either allegations of a conspiracy by the officials concerned or alternatively some form of personal vendetta. Such matters are not pleaded. Nor is the material relied upon capable of sustaining such a pleading. For public officials dealing with vulnerable adults, it is important that they do not face unjustified allegations of targeted malice without clear factual assertions to support such assertions. The threshold is a high one and will not be met in most cases without something to take the case beyond allegations of reckless indifference (assuming there are material facts to plead the latter).
89. The conclusion I have reached therefore is that insofar as paragraph 44 alleges that the relevant officials acted with an improper purpose or deliberately or knowingly to plead targeted malice then these parts of the allegations should be struck out.
90. I should add in that regard that once discovery has been completed, because I do not consider that my decision affects the ambit of the discovery required from the defendant, the plaintiff, if so advised, may apply to amend, if documents show that there are material facts can be pleaded to justify a case of targeted malice. This decision is not intended to prevent such an application being made. Rather my decision at this stage, on the basis of the facts currently pleaded, is that a case of targeted malice is not sustainable.
91. In relation to the alternative claim in negligence brought by the plaintiff, the question that arises is how far a duty of care is owed by the defendant to medical professionals, or indeed, anyone suspected of causing abuse who is under investigation.
92. In the course of argument Advocate Jones accepted, correctly in my view, that generally a duty of care is not owed to a medical professional where steps are being taken to protect or safeguard vulnerable adults (or indeed children) where such a vulnerable person is at risk so long as the policy was being followed. The closely connected question was explored or has been explored on a number of decisions of the House of Lords and the Supreme Court which recently were reviewed in Poole Borough Council v GN [2019] UKSC 25.
93. The opening paragraph of the judgment in Poole recorded the main issue as follows:-
"The principal question of law which it raises is whether a local authority or its employees may owe a common law duty of care to children affected by the manner in which it exercises or fails to exercise those functions, and if so, in what circumstances."
94. In Poole, the Supreme Court confirmed the decision of the House of Lords in D v East Berkshire Community Heal NHS Trust & Ors [2005] 2 AC 373. The East Berkshire decision was summarised at paragraph 58 of Poole as follows:-
"58. Lord Nicholls, in a speech with which Lord Steyn, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood agreed, observed at para 82 that the law had moved on since the decision in X (Minors) v Bedfordshire :
"There the House held it was not just and equitable to impose a common law duty on local authorities in respect of their performance of their statutory duties to protect children. Later cases mentioned by my noble and learned friend, Lord Bingham of Cornhill, have shown that this proposition is stated too broadly. Local authorities may owe common law duties to children in the exercise of their child protection duties."
The latter sentence made it clear that the House of Lords accepted that a duty of care could be owed to the child."
95. This led the Supreme Court in Poole to state the following at paragraph 65:-
65. It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation."
96. Paragraph 74 of East Berkshire is pertinent and states as follows:-
"74. The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child. Public confidence in the child protection system can only be maintained if a proper balance is struck, avoiding unnecessary intrusion in families while protecting children at risk of significant harm: see the Preface to 'Working Together', (1991). Clearly, health professionals must act in good faith. They must not act recklessly, that is, without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standards of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? Put differently and more widely, what is the appropriate level of protection for a person erroneously suspected of child abuse? Should he be protected against professional negligence by those charged with protecting the child? Or only against lack of good faith?"
97. The House of Lords' conclusions are found at paragraphs 85 and 137 cited by Advocate Lacey as follows:-
"85. In my view the Court of Appeal reached the right conclusion on the issue arising in the present cases. Ultimately the factor which persuades me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled "conflict of interest". A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel "quite right", a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent."
"137. There is always a temptation to say in all these cases that no one, whether a doctor concerned with possible child abuse, a witness or a prosecutor will ever in fact be held liable unless he has conducted himself manifestly unreasonably; it is unnecessary, therefore, to deny a duty of care, better rather to focus on the appropriate standard by which to judge whether it is breached. That, however, is to overlook two fundamental considerations: first, the insidious effect that his awareness of the proposed duty would have upon the mind and conduct of the doctor (subtly tending to the suppression of doubts and instincts which in the child's interests ought rather to be encouraged), and second, a consideration inevitably bound up with the first, the need to protect him against the risk of costly and vexing litigation, by no means invariably soundly based. This would seem to me a very real risk in the case of disgruntled parents wrongly suspected of abuse; all too readily they might suppose proceedings necessary to vindicate their reputation."
98. The difficulty with the present case is that the policy of the defendant does not arise from statute. There is therefore no statutory protection excluding any liability for any negligent application of the policy. However, in my judgment the same conflict recognised in East Berkshire exists in the present case when protecting vulnerable adults. It would not be fair just and reasonable to impose a common law duty on the defendant when applying its policy, because the importance of public officials being able to "act single- mindedly".The reasoning in East Berkshire therefore applies to the present case and to officials acting on behalf of the defendant when applying the defendant's policy to safeguard vulnerable adults. This is notwithstanding the lack of any statutory regime. I do not consider that any duty of care should be extended to such officials for the same reasons that a duty of care did not arise in East Berkshire. For so long therefore officials on behalf of the defendant are applying the defendant's policy on safeguarding adults, a duty of care is not owed to any persons suspected of causing harm to a vulnerable adult.
99. My conclusion does not mean however that any such person is without any remedy if a policy such as the defendant's policy is not followed in a material way. A duty of care is not therefore owed because of the existence of adequate remedies to protect individuals under some form of investigation
100. Firstly, individuals who act recklessly may be held liable on the basis of the tort of misfeasance in public office as was recognised by Lord Nicholls at paragraph 7 of East Berkshire.
101. Secondly, the defendant if he or his officials fail to apply the policy at the time of an investigation, is subject to the remedy of judicial review and therefore could be compelled to apply his policy in an extreme case.
102. The general conclusion that no duty of care is owed is also subject to a further qualification. I consider that a duty of care can arise in favour of a medical professional, following the conclusion of a safeguarding investigation, where a decision has been made that it is appropriate to make a referral to a professional body. I have reached this conclusion firstly because what underpins a duty of care not being owed applying East Berkshire is the potential for a conflict of interest. That conflict no longer exists once the investigation has concluded and steps have been taken to safeguard the vulnerable individual. The rationale for not imposing a duty of care on officials of the defendant in favour of medical professionals being investigated therefore no longer applies.
103. Furthermore, by issuing the policy the defendant has assumed a responsibility to the medical professionals such as the plaintiff to allow the plaintiff a right to reply. In the Poole case referred to above the importance of an assumption of responsibility was explored at paragraphs 66 to 72 including citing the following from the well-known case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 as follows:-
"66. It is apparent from the cases so far discussed that the nature of an assumption of responsibility is of importance in the present context. That topic should be considered before turning to the circumstances of the present case.
67. Although the concept of an assumption of responsibility first came to prominence in Hedley Byrne in the context of liability for negligent misstatements causing pure economic loss, the principle which underlay that decision was older and of wider significance (see, for example, Wilkinson v Coverdale (1793) 1 Esp 75 ). Some indication of its width is provided by the speech of Lord Morris of Borth-y-Gest in Hedley Byrne, with which Lord Hodson agreed, at pp 502-503:
"My Lords, I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise." (Emphasis Added)
It is also apparent from well-known passages in the speech of Lord Devlin, at pp 528-529 and 530:
"I think, therefore, that there is ample authority to justify your Lordships in saying now that the categories of special relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Norton v Lord Ashburton [1914] AC 932 , 972 are 'equivalent to contract,' that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract...I shall therefore content myself with the proposition that wherever there is a relationship equivalent to contract, there is a duty of care. ... Where, as in the present case, what is relied on is a particular relationship created ad hoc, it will be necessary to examine the particular facts to see whether there is an express or implied undertaking of responsibility."
68. Since Hedley Byrne , the principle has been applied in a variety of situations in which the defendant provided information or advice to the claimant with an undertaking that reasonable care would be taken as to its reliability (either express or implied, usually from the reasonable foreseeability of the claimant's reliance upon the exercise of such care), as for example in Smith v Eric S Bush , or undertook the performance of some other task or service for the claimant with an undertaking (express or implied) that reasonable care would be taken, as in Henderson v Merrett Syndicates Ltd and Spring v Guardian Assurance plc [1995] 2 AC 296 In the latter case, Lord Goff observed at p 318:
"All the members of the Appellate Committee in [ Hedley Byrne ] spoke in terms of the principle resting upon an assumption or undertaking of responsibility by the defendant towards the plaintiff, coupled with reliance by the plaintiff on the exercise by the defendant of due care and skill. Lord Devlin, in particular, stressed that the principle rested upon an assumption of responsibility when he said, at p 531, that 'the essence of the matter in the present case and in others of the same type is the acceptance of responsibility'. ... Furthermore, although Hedley Byrne itself was concerned with the provision of information and advice, it is clear that the principle in the case is not so limited and extends to include the performance of other services, as for example the professional services rendered by a solicitor to his client: see, in particular, Lord Devlin, at pp 529-530. Accordingly where the plaintiff entrusts the defendant with the conduct of his affairs, in general or in particular, the defendant may be held to have assumed responsibility to the plaintiff, and the plaintiff to have relied on the defendant to exercise due skill and care, in respect of such conduct."
69. That approach is reflected in the cases previously discussed. In X (Minors) v Bedfordshire , the social workers were held not to have assumed any responsibility towards the claimants in the child abuse cases on the basis that they were not providing their professional services to the claimants, and it was not reasonably foreseeable that the claimants would rely on the reports which they provided to their employers. In the education cases, on the other hand, the local authority assumed responsibility for the advisory service which it was understood to provide to the public, since the public could reasonably be expected to place reliance on the advice; a school assumed responsibility for meeting the educational needs of the pupils to whom it provided an education; the headmaster came under a duty of care by virtue of his responsibility for the school; and an advisory teacher assumed responsibility for advice which he knew would be communicated to a child's parents and on which they would foreseeably rely. In Barrett v Enfield, the local authority assumed responsibility for the welfare of a child when it took him into its care. In Phelps v Hillingdon, the educational psychologist assumed responsibility for the professional advice which he provided about a child in circumstances where it was reasonably foreseeable that the child's parents would rely on that advice.
"The question of whether the order can have generated a duty of care is comparable with the question of whether a statutory duty can generate a common law duty of care. The answer is that it cannot: see Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. The statute either creates a statutory duty or it does not. (That is not to say, as I have already mentioned, that conduct undertaken pursuant to a statutory duty cannot generate a duty of care in the same way as the same conduct undertaken voluntarily.) But you cannot derive a common law duty of care directly from a statutory duty. Likewise, as it seems to me, you cannot derive one from an order of court.""
104. In this case the Minister by his policy has stated that, where an investigation is concluded, an official with the requisite qualifications and experience will inform the medical professional concerned about any proposed referral that the defendant proposes to make to a regulatory body before such a referral takes place. This policy is arguably an assumption of responsibility falling within Hedley Byrne and the analysis in Poole. The reason why the defendant can be held to account by reference to that policy because a referral from officials on behalf of the defendant to professional bodies will inevitably be taken seriously. The assumption of responsibility therefore arises out of performance of the defendant's functions (by officials) under the policy. The plaintiff is entitled to rely on the ability of the defendant's' officials to make careful inquiry, and that because the defendant in the policy has taken it upon himself to allow his information or advice to be passed on to another person (i.e. a disciplinary body of a medical professional) who, as the defendant knows or should know, will place reliance upon it, then a duty of care will arise. The significance of a referral is effectively recognised (rightly) by the policy allowing a right of reply to a medical professional before a referral occurs. It is not therefore unfair unjust or unreasonable to permit a trial to determine whether such a duty of care is owed, its ambit and whether it has been breached. These are all arguable questions that it is not appropriate to determine on a strike out application.
105. It is right also to record in relation to the plaintiff's claims that, even though a trial is required, the plaintiff will have to address the defendant's arguments that ultimately it was a matter for the GOC whether or not to suspend the plaintiff and to take disciplinary action and so any loss suffered by the plaintiff was not therefore due to breaches of the tort of misfeasance in public office or any breach of any duty of care I have found which requires a trial. While these arguments may have force at the end of the day, again they are not capable of being determined on a strike out application; rather the difficult issue the Royal Court will face is to assess whether a referral would have been made had the plaintiff been consulted in accordance with the defendant's policy and, if a referral would have been made, whether any such referral would have led to the suspension of the plaintiff.
106. Finally, it is appropriate to deal with the defamation proceedings brought by the plaintiff in England. These proceedings were struck out on a variety of grounds referred to in paragraph 48 of the judgment leading to one viable cause of action only. However, this was struck out as a claim in defamation because the defendant was entitled to raise a defence of absolute privilege because the statements made to the GOC were quasi-judicial proceedings. This led the plaintiff to argue that the defendant was acting with malice.
107. The relevant part of the High Court's conclusion in relation to a pleading of malice is found at paragraph 81 of the judgment as follows:-
"81. Paragraph 10 does not raise a probability of malice; it is equally consistent with honest belief. The unparticularised alleged breach of procedure of the Jersey Health and Social Services Department (Paragraphs 16 and 24) is incapable of demonstrating that the Defendants knew that the allegations made by Patient A were false (or that they were reckless as to their truth/falsity). The failure to contact the Claimant and/or to carry out any investigation do not raise a probability of malice (Paragraphs 47 and 48). The Defendants were not the investigators (and even had they been, a failure to contact the Claimant would not have been probative of malice). They were people to whom disclosures were made from Patient A, someone in respect of whose health and welfare they had an interest. They then reported what they had been told to the regulator of the person the subject of the complaint. It was for the GOC to investigate the complaint. If the complaint progressed, in accordance with the GOC's rules, the Claimant would be given an opportunity to comment upon and answer the allegations. Paragraphs 17 and 21 are nothing more than formulaic assertions of malice and contain no pleaded facts that could begin to demonstrate the required state of mind."
108. Paragraphs 16 and 24 of the particulars of claim filed in England stated as follows:-
16. Furthermore, the actions of the 1st Defendant and the 2nd 3rd 4th and 5th Defendants in referring the Report to the GOC or encouraging it to be so referred, were carried out in flagrant and knowing breach of the established procedures of the Jersey Health and Social Services Department. In particular the actions were taken without prior reference to the Claimant.
24. Furthermore, the actions of the 2nd Defendant were carried out in flagrant and knowing breach of the established procedures of the Jersey Health and Social Services Department, in particular without prior reference to the Claimant..."
109. In contrast to the pleaded claim in England, the breaches of procedure are now particularised and are admitted albeit the effect of these breaches is disputed as noted above. This has led to the conclusion I have reached above that the pleaded case before me of misfeasance in public office is one that justifies a trial notwithstanding the dismissal of the defamation proceedings in England.
110. In particular, Nicklin J did not have the benefit of the detailed pleading that I have had to consider. Nor did he have the benefit of the admissions that breaches of the defendant's procedures had occurred. While not doubting in any way his decision to strike out the English defamation proceedings, I do not consider that his decision is a basis to strike out the present proceedings. The present proceedings directly seek to hold the officials of the defendant to account for misfeasance in public office and in negligence (to the extent permitted by this decision) based on a failure to apply the defendant's own procedures on the basis that such a failure was reckless and on the basis of a negligent failure to consult the plaintiff before a referral was made to the GOC. I consider these issues require a trial for the reasons set out in this judgment.
111. In light of the conclusions reached by this decision, I wish to be addressed, when this judgment is handed down, on whether the plaintiff should amend its order of justice now to reflect my decision or whether this should occur after discovery.
Authorities
Huda v Wells [2017] EWHC 2553.
D v East Berkshire Community Health NHS Trust and others [2005] 2 AC 373.
Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1.
Syvret v Chief Minister, SEB, SOJ and AG [2011] JLR 343.
Trant v AG and Others [2007] JCA 073.
Home Farm Developments Limited v Le Sueur [2015] JCA 242
Brakspear & Ors v Nedgroup Trust (Jersey) Limited [2018] JRC 121.
JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm).
Poole Borough Council v GN [2019] UKSC 25.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.