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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> APPEAL BY THE ADVOCATE GENERAL FOR SCOTLAND AGAINST MICHELLE ADEWEMIMO ADIUKWU [2020] ScotCS CSIH_47 (14 August 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_47.html
Cite as: [2021] Imm AR 413, 2021 SC 38, [2020] CSIH 47, [2020] ScotCS CSIH_47, 2020 GWD 26-348, 2020 SLT 861
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk
Lord Glennie
Lord Woolman
[2020] CSIH 47
XA128/19
OPINION OF LADY DORRIAN, the LORD JUSTICE CLERK
in the appeal
by
THE RIGHT HONOURABLE LORD KEEN OF ELIE, Her Majesty's Advocate General for
Scotland, as representing the Secretary of State for the Home Department
against
Defender and Appellant
MICHELLE ADEWEMIMO ADIUKWU
Pursuer and Respondent
___________________
Defender and Appellant: McIlvride QC, Pugh; Morton Fraser LLP
Pursuer and Respondent: Crawford QC, Dewar; Drummond Miller LLP
14 August 2020
The nature of the respondent’s case
[1] I am grateful to Lord Glennie for setting out the detail of the factual background of
this case, and the pleadings, in his own opinion with which I am in agreement.
[2] This is a case which went to the sheriff for debate on the reclaimer’s preliminary plea
that the respondent’s pleadings were irrelevant et separatim lacking in specification. The
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2
focus of such a debate is, or should be, the averments made by the respondent, with such
relevant averments by the reclaimer which may bear on the issue which is essentially
whether the respondent has averred a relevant case from which it may be established that
the Home Secretary was under a duty of care to her. The foundation of that alleged duty of
care should be clearly specified in the pleadings. It is, I think worth taking a moment to
examine what the respondent’s written case is before turning to see how differently the case
was eventually argued before the sheriff; and how differently again it was argued in this
court. The written case is that:
(a) The Home Secretary owed the respondent a duty to take care in the
administrative implementation of the immigration decisions in her favour; more
specifically she had a duty to ensure that the respondent received a status letter
which she could use to obtain paid employment and/or access state benefits for
herself and her children.
(b) The Home Secretary was under a duty to obtemper both orders of the
immigration tribunals and, ultimately, to issue the respondent with a status letter in
implementation thereof.
(c) The claim appears to be based entirely on foreseeability, although it is very
baldly stated. The central averment is simply that the respondent knew or ought to
have known that the respondent was entitled to be granted leave to remain in the
United Kingdom as early as 15th December 2014. It is then averred that “as a
consequence of the maladministration committed by the Home Secretary, or those
acting on her behalf, the [respondent] suffered reasonably foreseeable, and
predictable, financial loss and damage”.
[3] It is hardly necessary to point out that these averments follow a false premise, as
specified at paragraphs (a) and (b): the decisions of the respective tribunals did not involve
making any order that the Home Secretary should issue a status letter. They determined
that her removal would be a disproportionate interference with her article 8 rights. How to
address that remained a matter for the Home Secretary. It may well be that in reality there
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3
was little doubt that these decisions would be followed by the issuing of a status letter but
the matter was nevertheless still one for the exercise by the Home Secretary of her section 4
discretion. None of this is the matter of any averment. I agree with Lord Glennie’s
observation that as far as predicated on assertions that the tribunals ordered the Home
Secretary to grant leave to remain the case is irrelevant.
[4] It is striking that the pleadings contain no averments of any policy allegedly
operated by the Home Secretary, the details of any policy, when and how it was put in
place, the extent to which it was implemented in practice, how it might affect the respondent
or any other matters of that kind. Notwithstanding this, the sheriff felt able to proceed on
the basis that there was a policy that would have operated favourably towards the
respondent on the basis of oral submissions made at the bar, and to base his decision to a
degree on this. In my view that is an unsatisfactory way of proceeding. If a case is said to
rest on the existence and operation of a policy those matters should be clearly made the
subject of averment so that an informed and reliable understanding of the policy and its
operation may be achieved. Proceeding on the basis of submissions made “on the hoof” is
not appropriate. It is now said, orally, that there was “a systemic failure to ensure that
policies are applied”. This, rather than foreseeability, is now said to be the source from
which a duty on the respondent may be deduced. How on earth this court could consider
there to be a valid issue for inquiry on that matter in the absence of averments I cannot see.
[5] In the second place there are equally no averments of any kind such as would bring
the case within the classification of the creation of a danger or the assumption of
responsibility which may be relevant to the establishment of a duty of care for failing to
confer a benefit, which at heart is what the respondent’s case is. When the case has
proceeded this far, I share your Lordships’ reluctance to decide the issue on a mere pleading
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4
point, but we should remind ourselves of the observations made by Lord Reed in N and
“Since such an inference depends on the facts of the individual case, there may well
be cases in which the existence or absence of an assumption of responsibility cannot
be determined on a strikeout application. Nevertheless, the particulars of claim must
provide some basis for the leading of evidence at trial from which an assumption of
responsibility could be inferred.”
[6] In short, whilst I do not suggest that the case should be determined purely on the
basis of an absence of pleading, I do consider that if the absence of pleadings causes a
difficulty in reaching a conclusion on any matter the benefit should be given to the appellant
in the absence of any, let alone clear and detailed, pleadings. I also agree with the
observations made by Lord Glennie about these matters at paragraph 11 of his opinion.
The legal issues
[7] The shifting sands which have bedevilled this area of the law over many years have
been converted into firm terrain during a series of important decisions of the UKSC, notably
These recent decisions have made it clear that Caparo should not be taken as establishing a
universal tripartite test for the existence of a duty of care. On the contrary, in the ordinary
case the court should continue to apply established principles of law. The Caparo test was
appropriate when considering novel situations, where an incremental approach by analogy
with established categories of liability was to be adopted. In such situations the question of
whether it was fair, just and reasonable to impose a duty would be part of the assessment
whether such an incremental step required to be taken.
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5
[8] The sheriff did not rely on Caparo, having reached the conclusion that the matter was
covered by the decision in R (Kanidagli) v Secretary of State for the Home Department
[2004] EWHC 1585 (Admin), where the judge concluded that it was fair, just and reasonable that an
administrative error of this kind, involving no judgment but simple administration and with
a predictable financial effect, for which there was no other remedy, should be regarded as
arising out of a sufficiently proximate relationship to found a claim for damages. Somewhat
mystifyingly, the sheriff concluded that nevertheless, had he been required to go through a
Caparo exercise himself he would have adopted the same general approach, notwithstanding
that he tells us he “was not addressed in any detail in relation to the factors to be taken into
account in applying the fair, just and reasonable test set out in Caparo”. The sole basis for the
sheriff’s decision was that (a) Kanidagli applied; (b) the ratio of that case, namely that there
(c) the ratio had not been impliedly overturned by the appeal court in the case of Mohammed
[9] I disagree. The decision in Mohammed was that the Home Secretary did not owe a
common law duty of care to applicants for leave to remain in the United Kingdom to avoid
maladministration in the exercise of her power to grant leave to remain under section 4(1) of
the Immigration Act 1971. The argument which had been advanced was put solely on the
basis that the court should follow Kanidagli. At paragraph 15 the Appeal Court made it clear
that it did not think that the reasons given in Kanidagli for distinguishing W – the basis upon
which the case had effectively succeeded – were valid. In W, the claimant had been held in
immigration detention because of a crass administrative mistake, which could not be
dignified as an error of judgment, yet the court held that no claim lay in negligence. I cannot
read Mohammed as doing other than disapprove of the rationale of Kanidagli. In addition the
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6
facts of this case are much closer to those of Mohammed itself. I do not therefore think the
sheriff’s reasoning can stand. However, in any event, I am not convinced that any of the
three cases, W, Kanidagli, or Mohammed, assist in determining the correct approach to this
case, given the extent to which understanding of the law in this area has been clarified and
developed by Michael, Robinson and N.
[10] I turn then to examine the matter from the basis of the “established principles of law”
referred to in N, further guidance about which was given succinctly by Lord Reed in
para 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.”
It was accepted in submissions in this appeal that no duty of care arose directly from the
relevant statute. Rather than focus on the way the case had originally been argued under
reliance on Kanidagli, senior counsel accepted that the respondent’s case had to come within
paragraphs (1) or (3) of paragraph 65 of N. The respondent’s argument was that the failure
complained of did not arise in the course of the exercise of a statutory function or power by
the Secretary of State; rather the failure arose in the course of the simple administration of
something that required to be done by the Secretary of State. I confess that I have difficulty
in understanding the distinction in the circumstances of this case. It seems to me that there
is an essential circularity in the approach adopted for the respondent; it is accepted that
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7
there is generally no liability for failing to confer a benefit, yet it is argued that that very
failure is alone sufficient to create liability by reclassifying it as the creation of a danger. As
with the arguments on assumption of responsibility it essentially rests on the proposition
that a duty of care exists merely because there existed a statutory power the exercise of
which could have conferred a benefit on the respondent.
[11] The respondent’s case is in my view not one of causing harm to the claimant but is
one of failing to confer a benefit on the respondent. It is thus a case falling within the
established principle that a duty of care does not arise save in very limited exceptions, viz:
where the defender has created the source of the danger or where there has been a voluntary
assumption of responsibility. I have little difficulty in rejecting the suggestion that the
Home Secretary created a source of danger for the respondent or that the situation may be
equiparated with such a circumstance. The respondent was in no worse position following
the decision of the First-tier Tribunal as a result of the Home Secretary’s actions; the point of
her claim is that the Home Secretary did not take action to put her in a better position. I find
it very difficult to see how this can truly be equiparated with creating a source of danger for
the respondent.
Assumption of responsibility
[12] The same applies to the question of assumption of responsibility. The basis upon
which the Home Secretary may be said to have assumed responsibility towards the
respondent is very difficult to identify. It was not identified in the pleadings and I remain
unclear as to the basis of the current assertion.
[13] The principles underlying the circumstances in which a duty of care may be said to
arise from an assumption of responsibility were examined by Lord Reed in N in
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8
paras 66 - 73. The development was traced from early cases through Hedley Byrne & Co Ltd v
in the latter:
“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.”
[14] The argument that a public authority cannot assume responsibility merely by
operating a statutory scheme, on the basis that the responsibility must be “voluntarily
accepted or undertaken”, was also examined specifically under reference to Rowley v
Council [2009] EWCA Civ 286. At para 72 of N, Lord Reed noted:
“The correctness of these decisions is not in question, but the dicta should not be
understood as meaning that an assumption of responsibility can never arise out of
the performance of statutory functions.”
He went on:
“the operation of a statutory scheme does not automatically generate an assumption
of responsibility, but it may have that effect if the defendant’s conduct pursuant to
the scheme meets the criteria set out in such cases as Hedley Byrne and Spring v
Guardian Assurance plc.”
[15] These criteria essentially relate to circumstances of the kind described in Hedley Byrne
in the speech of Lord Morris of Borth-y-Gest, pp502-503
“….. 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. … 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”.
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9
[16] The situation is sometimes described (see the speech of Lord Devlin in Hedley Byrne)
as being where the relationship between the parties is equivalent to a contractual one. I do
not see that categorisation as valid in the present case. In Gorringe v Calderdale Metropolitan
Borough Council [2004] 1 WLR 1057 Lord Hoffman (para 38) referred to circumstances where
public authorities have actually done acts or entered into relationships or undertaken
responsibilities which give rise to a common law duty of care. If we ask what has the Home
Secretary done here or what relationship has she established to bring her within the scope of
a duty of care? The answer is nothing: it is in reality purely based on a statutory power
under section 4. In short, in my view nothing is relied on save the nature of the statutory
functions and these do not suggest that there was any assumption of responsibility to the
respondent to perform those functions with reasonable care.
[17] Accordingly, it is my view that the appeal must succeed.
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10
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk
Lord Glennie
Lord Woolman
[2020] CSIH 47
XA128/19
OPINION OF LORD GLENNIE
in the appeal
by
THE RIGHT HONOURABLE LORD KEEN OF ELIE, Her Majesty's Advocate General for
Scotland, as representing the Secretary of State for the Home Department
Defender and Appellant
against
MICHELLE ADEWEMIMO ADIUKWU
Pursuer and Respondent
___________________
Defender and Appellant: McIlvride QC, Pugh; Morton Fraser LLP
Pursuer and Respondent: Crawford QC, Dewar; Drummond Miller LLP
14 August 2020
Introduction
[18] This is an appeal from an interlocutor of the sheriff of Grampian, Highland and
Islands sitting at Aberdeen dated 12 June 2019 repelling the defender’s plea to the relevancy
of the pursuer’s case and allowing parties a proof of their averments.
[19] The appeal raises an important and, on one view, novel point of law as to whether, in
circumstances where both the First-tier Tribunal and the Upper Tribunal (the “FtT” and the
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“UT”) have held that her refusal of an application for leave to remain was unlawful, and she
has not sought to appeal the decision of the UT, the Secretary of State for the Home
Department (the “Home Secretary”) owes a duty of care to grant the applicant discretionary
leave to remain and issue to the applicant a “status letter” confirming that she has such
leave, thereby enabling the applicant to obtain employment and access welfare benefits, and
to do that within a reasonable time of the decision not to seek to challenge the UT’s decision.
[20] The pursuer and respondent is the applicant for leave to remain. I shall generally
call her “the pursuer”, but given her status at certain material times it is convenient
sometimes to refer to her as “the applicant”. She claims damages in the amount of £56,000
in respect of loss and damage allegedly suffered by her as a result of the Home Secretary’s
failure to issue her with the appropriate status letter for some 20 months between March
2015, when the UT found in her favour, and November 2016, when the letter was eventually
issued. She contends in her pleadings that this failure prevented her from obtaining
employment as a lawyer within the United Kingdom, she having obtained a law degree in
Nigeria and a Masters in Oil and Gas Law at Robert Gordon University in Aberdeen; that it
prevented her from accessing benefits of any kind for herself and her children to which she
would otherwise have been entitled if unable to obtain employment; and that it made it
impossible for her to pay her rent, as a result of which she was evicted from her
accommodation and forced to seek refuge in emergency accommodation.
[21] The defender and appellant is the Advocate General for Scotland. He is sued as the
appropriate Law Officer in respect of these proceedings in terms of s.4A of the Crown Suits
(Scotland) Act 1875. For all practical purposes, the defender and appellant is the Home
Secretary. I shall refer to them as “the defender”.
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[22] Recognising that the appeal raised both complex and possibly novel points of law,
the Sheriff Appeal Court on 29 October 2019 remitted the appeal to the Court of Session
under section 112 of the Courts Reform (Scotland) Act 2014.
Outline Facts
[23] The assumed facts relevant to this appeal fall within a narrow compass. Sections 3
and 4 of the Immigration Act 1971 entitle the Home Secretary to grant a person leave to
remain in the United Kingdom for a limited or an indefinite period. On 16 March 2010 the
applicant applied for leave to remain, her application being based on Article 8 ECHR, the
right to respect for private and family life. Her application was refused in December 2010.
In December 20131 the applicant appealed to the FtT (Immigration and Asylum Chamber)
against that refusal. On 31 July 2014, the FtT allowed the applicant’s appeal. The Home
Secretary appealed to the UT. On 16 March 2015 that appeal was refused. The Home
Secretary did not seek to challenge the decision of the UT refusing her appeal. She became,
to use the jargon, “appeal rights exhausted”. We were not taken specifically to the reasoned
decisions of either the FtT or the UT, but those decisions were included in the productions in
this case and we have read them as part of the background to our consideration of the
issues. The sheriff records in paragraph 2 of his Note that it was a matter of agreement that
those decisions were to the effect that removal of the applicant from the UK was
incompatible with her rights under Article 8 ECHR.
[24] It appears to have been a matter of agreement before the sheriff – though the matter
is not referred to at all in the pursuer’s pleadings and no such agreement was recorded in a
1 Some explanation of the delay of three years between the Home Secretary’s decision and the appeal
to the FtT is contained within the decisions of the FtT and the UT, but the delay is of no importance
for present purposes.
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13
joint minute or any other written document – that there was in existence at the time relevant
Home Office policy guidance stating that persons in the class of the pursuer should be
granted discretionary leave to remain for up to 30 months. The sheriff records it in this way
in paragraph 2 of his Note:
“The Secretary of State has published policy guidance that provided between 2010
and 8 July 2012 a person whose removal from the UK would be incompatible with
Article 8 of the ECHR should be given discretionary leave to remain for up to three
years. From 9 July 2012, the policy changed so that, subject to certain exceptions, the
maximum period of discretionary leave which would be granted at any one time was
thirty months. The grant of leave to remain is dealt with by issuing a ‘status letter’”.
The full text of the relevant guidance is set out by Lord Doherty at para [15] of his Opinion
“[15] At the material times the Secretary of State's published policy guidance was
as follows:
Discretionary leave to remain - Immigration Rule 395C
Chapter 53 of the EIG provided guidance on the ‘relevant factors’ to which UKBA
officials should have regard in terms of rule 395C before making a decision on
removal under section 10 of the Immigration Act 1999. The version of Chapter 53
which was extant immediately before April 2008 provided:
‘Should the decision maker conclude that removal is not appropriate then leave
outside the Rules should be granted. Such leave should generally be Indefinite
Leave to Remain unless limited leave or deferred removal is the appropriate course
of action to take. However, each case must be considered on its own individual
merits.’
Between April 2008 and 19 July 2011 Chapter 53 did not prescribe the length of time
for which leave to remain should be granted in the event of a decision not to remove
on Rule 395C grounds. From 20 July 2011 until rule 395C was revoked on 13
February 2012 Chapter 53 provided that in such circumstances discretionary leave to
remain for a period of up to three years should be granted.
Discretionary leave to remain - article 8
Between 2010 and 8 July 2012 a person whose removal would be incompatible with
article 8 ECHR should be given discretionary leave to remain for up to three years.
Discretionary leave to remain - change in policy
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14
From 9 July 2012 the policy changed so that, subject to certain exceptions, the
maximum period of discretionary leave which would be granted at any one time was
30 months.”
The present case concerns events after July 2012, so the policy with which we are concerned
was that, subject to certain exceptions (which neither party has suggested are relevant here),
once it had been determined that an applicant’s removal from the United Kingdom would
be incompatible with Article 8 ECHR, that applicant should be given discretionary leave to
remain for up to 30 months.
[25] It is contended by the pursuer, and I did not understand it to be disputed, that
without the grant of a status letter a person will find it impossible to obtain employment and
access welfare benefits.
[26] The Home Secretary did not issue the pursuer with a “leave to remain” status letter,
until November 2016. No explanation for the delay between March 2015 and November
2016 has been provided. It is not said that the delay was due to any requirement on the part
of the Home Secretary to make further enquiries or to exercise a discretion as to whether or
not to issue a status letter in light of the UT’s determination of her appeal, or to any need to
resolve some question as to the applicability of her policy to the case of the pursuer. At
paragraph 9 of his Note, the sheriff records the position adopted by Mr Pugh on behalf of
the Home Secretary:
“He summarised the factual basis of the case categorising the failure on the part of
the defender as a delay in granting the pursuer leave to remain. No explanation is
given in the defender's pleadings for the delay in issuing a status letter. Mr Pugh
explained that there was no dispute but that there was a delay. The Secretary of
State accepts that. From the date of the Upper Tribunal's decision the natural
consequence was that leave to remain should have been granted to the pursuer. No
explanation was offered in submissions. It was accepted that the defender simply
failed to do something which should have happened, namely the issuing of the
status letter.”
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15
That position taken before the sheriff reflects the position adopted by Mr McIlvride QC on
behalf of the Home Secretary before this court.
The pursuer’s pleadings
[27] Since the matter comes before this court on the question of relevancy, it is of some
importance to examine the pleadings. Article 2 of Condescendence sets out in narrative
form the decisions made leading to the point where the Home Secretary became appeal
rights exhausted. Article 3 avers that in those circumstances the Home Secretary came
under certain duties:
“3. The Defenders knew or ought to have known that the Pursuer was entitled to
be granted leave to remain in the United Kingdom as early as 15th December 2014.
That entitlement was expressly recorded in writing on 16th March 2015. It is
explained and averred that the Home Secretary owed the Pursuer a duty to take care
in the administrative implementation of the immigration decisions in her favour.
More particularly, the Home Secretary owed the Pursuer a duty to ensure that she
received a status letter which she could use to obtain paid employment and/or access
state benefits for herself and her children. …”
The relevance of 15 December 2014 appears to be that this was the date of the hearing at
which the UT indicated that it was minded to refuse the appeal from the FtT. We are not
concerned with that in this appeal. The UT’s formal decision is dated 16 March 2015. The
nub of the pursuer’s case on breach of duty is set out in Article 4 of Condescendence. This
reads as follows:
“4. Despite repeated requests by the Pursuer, the Secretary of State for the Home
Department refused or at least delayed to issue the Defender with leave to remain
until in or around November 2016. The Home Secretary was under a duty to
obtemper both orders of the immigration tribunals and, ultimately, to issue the
Pursuer with a status letter in implementation thereof. It is averred that the Home
Secretary, or those acting on her behalf, ought to have done so within a reasonable
time; and the Secretary of State was under a duty to issue the leave to remain to the
Pursuer within a reasonable period. By not so doing the Secretary of State for the
Home Department failed in their (sic) duties and were wilfully negligent. As a
consequence of the maladministration committed by the Home Secretary, or those
acting on her behalf, the Pursuer suffered reasonably foreseeable, and predictable,
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16
financial loss and damage. But for the Home Secretary's failure(s) (or the failure(s) of
those acting on her behalf) to obtemper and implement the orders of the immigration
tribunals, at all or within a reasonable time, the loss and damage would not have
occurred. …”
The alleged duty is encapsulated in the pursuer’s first plea-in-law as follows:
“1. The Pursuer having suffered loss and damage through fault on the part of the
Secretary of State for the Home Department, is entitled to reparation from them
therefor.”
The reference in Article 4 to “maladministration” is not supported by averments of malice or
want of probable cause, a matter to which I return briefly below, nor is it followed through
to any appropriate plea-in-law. All that is focused in the plea-in-law is “fault”, which, in
light of what has gone before, presumably refers to alleged breaches of the duties identified
in Article 3, namely the duty “to take care in the administrative implementation of the
immigration decisions in [the pursuer’s] favour”, and Article 4, namely the duty “to
obtemper [within a reasonable time] both orders of the immigration tribunals and,
ultimately, to issue the Pursuer with a status letter in implementation thereof”.
[28] I shall refer in due course to the submissions before this court, but it should be
noticed at this stage that Ms Crawford QC, who appeared for the pursuer before us (though
she did not appear in the sheriff court), focused her arguments not on the alleged duties set
out in the passages quoted but on an assumption of responsibility by the Home Secretary.
That was said to arise to a significant extent from the existence of the policy guidance
referred to above. This line of argument does not feature in the pursuer’s pleadings. Legal
arguments do not require to be set out in terms. However, in so far as the assumption of
responsibility is based upon anything said or done by the Home Secretary, or the Home
Office, those facts should be averred. It is a matter of some concern that, in a procedure
focused on the relevance of the pursuer’s pleadings, those pleadings do not even mention
Page 17 ⇓
17
the key elements of her case. For my part I would not wish to decide this case in the absence
of averments on this critical point, but it seems to me that if this matter is to proceed further
in the sheriff court, whether by way of proof or proof before answer, the pursuer should be
required to amend so as to make relevant averments of all matters relied upon in support of
her argument, including in particular the terms of the relevant guidance, its statutory or
other basis, and the impact of that guidance on the arguments anent the existence or
otherwise of the duty of care contended for, as well as any actions of the Home Secretary or
those acting on her behalf upon which the pursuer relies to justify the assumption of
responsibility argument. This is not an insistence on procedural niceties for their own sake.
These key matters will be of direct relevance to the success or otherwise of the pursuer’s
case; and the question of whether the policy applied to the pursuer’s case, or whether the
Home Secretary was entitled to disapply it, may also be of relevance. That latter point is
hinted at in the pursuer’s Note of Argument where she says that the Home Secretary “has
not argued that the policy did not, or should not, apply to the pursuer”, a statement of fact
which may well be correct, though it is difficult to see where such an argument would be
made by the Home Secretary, in the pleadings at least, when the policy itself is not
mentioned by the pursuer. Other points of importance are similarly not mentioned in the
pleadings. It is said by the pursuer in her Note of Argument that the status letter entitles the
person to whom it is issued to obtain employment and access welfare benefits. That, too,
does not appear to be in dispute, but it is not apparent from the pursuer’s pleadings in the
sheriff court action whether this is said to be the legal effect of the issue of a status letter or,
conversely, whether the position is simply that the practical consequence of not having such
a letter is that one is prevented from obtaining employment and accessing such benefits.
This too would benefit from elaboration.
Page 18 ⇓
18
[29] I do not suggest, however, that we decide the case on the basis of the deficiencies in
the pursuer’s pleadings. The point of law raised in this case is capable of being decided on
the pleadings as they stand as amplified in the course of submissions.
The debate in the sheriff court and the sheriff’s decision
[30] Before the sheriff, it was argued on behalf of the Home Secretary that no duty of care
was owed to the pursuer in circumstances where the Home Secretary was simply fulfilling
her statutory function. There was authority against there being any such duty of care (W v
cases were not decisive, the court should proceed incrementally from the existing
authorities. There was no basis upon which it could be held that there was a relationship of
proximity between the defender and the pursuer or that it was fair, just and reasonable to
pursuer, reliance was placed upon the decision of Keith J in R (Kanidagli) v Secretary of State
for the Home Department [2004] EWHC 1585 (Admin). It was submitted that that case was
clear authority for the proposition that a duty of care was owed by the Home Secretary in a
case such as this. Esto that case was not on all fours with the present, it provided the basis
for the court in this case, proceeding incrementally, to hold that a duty of care was owed to
the pursuer.
[31] It is apparent from the sheriff’s Note that the argument before him came to be
focused almost exclusively on the question whether the judge in Kanidagli had correctly
distinguished the reasoning of the Court of Appeal in W; and whether the reasoning in
Kanidagli had in its turn been disapproved by the Court of Appeal in Mohammed. The sheriff
accepted the arguments advanced on behalf of the pursuer, held that Kanidagli had correctly
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19
distinguished W and had not been disapproved in Mohammed, and concluded that Kanidagli
determined the issue in the pursuer’s favour. In any event, the decision in Kanidagli
provided a sound basis for holding, on an incremental basis, that the relationship between
the pursuer and the Home Secretary was sufficiently proximate and that it was fair, just and
reasonable to impose such a duty.
[32] Accordingly, he repelled the first plea in law for the defender (a plea to the relevancy
of the action) and appointed the case to a proof. For my part, if we had otherwise been in
favour of the pursuer, I would have thought that the appropriate disposal was to order a
proof before answer, rather than a proof simpliciter.
Submissions before this court
[33] For the Home Secretary, Mr McIlvride invited the court to allow the appeal, sustain
the first plea in law for the defender and dismiss the action.
[34] He submitted that, in Scots law, a public official will be liable in damages for
maladministration in exercising his or her public functions only if proved to have been
acting with malice or want of probable cause: Micosta SA v Shetland Islands Council 1986
SLT 193, Lord Justice-Clerk Ross at 198G-I, Shetland Line (1984) Ltd v Secretary of State for
Scotland 1996 SLT 653, Lord Johnson at 658 sub-para.(5); and see also Kiani v Secretary of State
Highland Council [2018] CSIH 53, Lord President Carloway, giving the judgment of the court,
at paras [34]-[35]. The pursuer made no averments of malice or want of probable cause. It
was not enough for the pursuer to say, as she did say in her written submissions, that malice
could be inferred from the conduct of the Home Secretary in failing to issue a status letter
without any attempt to explain how that failure occurred. The only question for
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20
determination was whether the pursuer’s pleadings were relevant for enquiry. As already
observed, those pleadings made no mention of malice or want of probable cause, either
expressly or by inference. Accordingly, in so far as the case was based upon
maladministration, it was irrelevant.
[35] Mr McIlvride submitted that the Home Secretary owed no duty of care to the
pursuer to issue a status letter within a reasonable time. In so far as the pursuer’s case was
based in negligence, it was bound to fail and was irrelevant. Kanidagli, upon which the
sheriff had based his decision, was wrongly decided and had been disapproved by the
Court of Appeal in Mohammed. The 1971 Act conferred a power on the Home Secretary to
grant leave to remain but did not impose any duty on her in that respect. Even if the effect
of the FtT and UT decisions was to leave the Home Secretary with no alternative but to issue
the pursuer with a status document, so that her failure to do so within a reasonable time or
at all might be susceptible to judicial review, it did not follow that that public law duty, to
use that shorthand, transposed into a duty of care at common law. Mr McIlvride referred us
statement by Lord Hoffmann that where a statute did not create a private right of action, “it
would be, to say the least, unusual if the mere existence of the statutory duty could generate
a common law duty of care” (para 23); and he found it “difficult to imagine a case” in which
a common law duty could be founded simply upon the failure, however irrational, to
provide some benefit which a public authority has power, or even a public law duty, to
provide (para 32). Those observations were reflected in the judgment of Sedley LJ in
Mohammed at para 14: “As a general rule the proximity created by a statutory relationship
does not by itself create a duty of care”. Particular reliance was placed on two recent
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21
Poole Borough Council [2019] 2 WLR 1478) which both explained the development of the
common law in this area up to and including the decision in Caparo, and sought to establish
a coherent framework for the assessment of whether a duty of care is owed by a public body
in any particular case. In Robinson at para 29 Lord Reed explained that, properly
understood, Caparo achieved a balance between legal certainty and justice. He pointed out
that in the ordinary case the courts generally consider what has been decided previously
and follow those precedents. In other cases, where the question of the existence of a duty of
care has not previously been decided, the courts consider the closest analogy in the existing
law with a view to maintaining legal coherence and the avoidance of inappropriate
distinctions; and they also weigh up the reasons for and against imposing liability in order
to decide whether the existence of a duty of care would be fair, just and reasonable. Mr
McIlvride submitted that the previously decided cases of W and Mohammed already
established that no duty of care existed in a case such as this. In so far as those cases did not
provide a complete answer to the question whether a duty arose in the present case, they
were the cases most closely analogous to the present. No incremental development of the
common law starting from those cases would permit a finding that the Home Secretary
owed a duty of care in the present case. In N, a case about whether certain provisions of the
Children Act 1989 gave rise to a duty of care, Lord Reed took the opportunity of clarifying
what he called the “shifting approaches by the highest court” on the issue of the liability of
public authorities for their conduct of their statutory powers and duties: see para 25. At
para 28, Lord Reed pointed out that, like private individuals, “public bodies did not
generally owe a duty of care to confer benefits on individuals”, but that, as in the case of
private individuals, “a duty to protect from harm, or to confer some other benefit, might
arise in particular circumstances, as for example where the public body had created the
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source of danger or have assumed responsibility to protect the claimant from harm”. He
deliberately drew the distinction between “causing harm (making things worse) and failing
to confer a benefit (not making things better)” rather than the more traditional distinction
between acts and omissions, and Mr McIlvride submitted that the present case was one in
which it was being asserted that the Home Secretary owed a duty to confer a benefit. At
para 65 Lord Reed gave the following summary of the relevant principles concerning the
potential liability of public authorities (I quote it in full because it assumed centre stage in
the argument before us):
“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.”
Mr McIlvride submitted that the present case effectively fell within that second category.
The Home Secretary could confer a benefit on the respondent in the exercise of her statutory
functions, but did not owe a duty of care to do so. The pursuer’s argument depended
entirely upon the statutory relationship of the Home Secretary towards the pursuer. The
pursuer’s attempt to translate that statutory relationship into an assumption of
responsibility by the Home Secretary was bound to fail. There was no basis upon which to
hold that the Home Secretary had assumed the responsibility to the pursuer. The only
relevant facts were that the tribunals refused the Home Secretary’s appeal and that, in light
of that refusal, the matter went back to the Home Secretary to operate the statutory scheme.
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[36] Mr McIlvride submitted that, even if the relationship of proximity was established, it
was neither fair, just nor reasonable to impose a duty of care in a case such as this. The
losses sought to be recovered were pure economic losses, in respect of which the courts are
slow to create duties of care. And in any event the pursuer had other remedies, whether by
judicial review, or a claim under Article 8 ECHR, or, as noted in Mohammed at paras [25]-
[26] , by seeking assistance from the Parliamentary Ombudsman.
[37] For the pursuer, Ms Crawford QC invited the court to refuse the appeal, alternatively
to allow it only to the extent of appointing the matter to a proof before answer, leaving all
pleas standing, rather than a proof simpliciter.
[38] Ms Crawford made it clear that she was not advancing a case of “maladministration”
in support of which it would be necessary to show malice or want of probable cause:
Micosta. However, if malice or want of probable cause were necessary in order to instruct a
case that the Home Secretary was in breach of a common law duty of care, then it could be
established from the fact of the unexplained delay and the absence of any attempt to argue
that consideration was being given to departing from the policy – in other words it was a
case where there was no real exercise by the Home Secretary of her statutory function.
[39] Ms Crawford’s primary submission was that the duty of care incumbent on the
Home Secretary was based on orthodox principles of negligence. It arose in respect of her
failure to take reasonable care in the exercise of a purely administrative or operational act.
She contrasted this with what she described as the Home Secretary’s erroneous contention
that the pursuer sought to impose a common law duty of care in respect of the discharge of a
statutory power. The distinction was well illustrated by comparing the cases of W and
Mohammed with the decision of Keith J in Kanidagli. In W and Mohammed the Home
Secretary still had something to investigate and determine. Whatever the nature of the
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24
failure, it occurred in the course of exercising the statutory discretion. By contrast, in
Kanidagli, once the tribunals had made their decisions and it had been resolved that there
was to be no further appeal, all that remained for the Home Secretary was to issue the status
letter in accordance with the then existing policy. That was a critical distinction which the
Court of Appeal in Mohammed had failed to recognise.
[40] Ms Crawford submitted that the Home Secretary had assumed responsibility to take
care to grant the pursuer leave to remain and to issue a status letter within a reasonable
time. A number of factors were relied upon in support of the assumption of responsibility
argument. They were: (i) the decision of the UT; (ii) the lack of challenge to that decision;
(iii) the Home Secretary’s policy designed to regulate dealings with, and to ensure
continuity of decision-making in respect of, a defined class of persons, i.e. granting
discretionary leave of up to 30 months to those whose enforced removal from the United
Kingdom would contravene ECHR; (iv) the absence of a departure from that policy; (v) the
fact that leave to remain was required to access welfare benefits and employment; (vi) the
20 month delay in granting leave to remain. Ms Crawford also relied on: (vii) the fact that
the pursuer forms part of a limited and identifiable class; and (viii) the absence of any
suggestion that a duty of care would not impose any undue burden on the Home Secretary
timeously to carry out her administrative functions. Put compendiously, this was a case
where it could be said that the Home Secretary had created the source of danger, viz the
inability of a person in the position of the pursuer to access benefits or obtain work without
a status letter, or at least had control over it; she had set up a system for the issuing of a
status letter to an applicant who, in light of decisions by the FtT and the UT could not
lawfully be removed on ECHR grounds; and she was aware of the need to issue such a letter
within a reasonable time, since without it the applicant would be likely to suffer hardship.
Page 25 ⇓
25
In light of all that it could properly be said that she had assumed responsibility for the
issuing of such a letter within a reasonable time.
[41] Thus understood, the case fell within classic common law principles instructing a
case of negligence. Public authorities are generally subject to the same general principles of
the law of negligence as private individuals and bodies, except to the extent that legislation
requires a departure from those principles: see N, Lord Reed at paras 64 and 65. Lord Reed
makes it clear in N, at para 65, that public authorities do not owe a duty of care at common
law merely because they have statutory powers or duties the exercise of which might
prevent a person from suffering harm; but he emphasises, at para 72, that previous cases
should not be understood as meaning that an assumption of responsibility can never arise
out of performance of statutory functions; it may do if the conduct of the authority pursuant
to its statutory duties meets the criteria set out in cases such as Hedley Byrne & Co Ltd v Heller
requires attention to be directed to the detailed circumstances of the particular case and the
particular relationship between the parties: Gorringe, per Lord Steyn at para 2; Customs &
para 8 and per Lord Mance at para 93. The pursuer does not seek to impose on the Home
Secretary a common law duty based solely on the existence of a public law duty.
[42] Esto the case was properly classed as “novel”, Ms Crawford submitted that it met the
incremental approach. She relied on a number of cases – Kanidagli, McCreaner v Ministry of
situations in which a public body was found to be under a duty of care at common law for
actions taken, not at the stage where a discretion was being exercised and a judgment made
about what action to take, but at the later stage where all that was left was implementation
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26
of the decision which had been arrived at. The headnote in the law report of Mohammed, she
submitted, accurately stated the ratio in the case and, far from being against her, in fact
supported this distinction. W was a case where the wrongful action, the “crass
administrative mistake” as Sedley LJ called it in Mohammed, did not of itself involve the
exercise of any decision making judgment, but it occurred during the stage where the
Secretary of State still had a decision to make on the merits of the application for leave to
remain. W was correctly distinguished on that basis in Kanidagli. For the same reasons, both
W and Mohammed were correctly distinguished in McCreaner. These cases suggested that
there was a sound basis for proceeding by analogy and holding there to be a common law
duty of care in the present case.
Analysis and Decision
[43] Before turning to consider the critical arguments in this case, it is useful to clear away
some of the incidental issues which have raised their heads.
Maladministration
[44] It is important to remind oneself that this is not a case where the pursuer advances a
case of maladministration in the Micosta sense, in support of which it is necessary to prove
malice or want of probable cause. Ms Crawford expressly disclaimed any such contention
and the pursuer has, in any event, no pleadings to support such a case. Although there is a
reference to “maladministration” in Article 4 of Condescendence, that stands alone and can
be disregarded in light of Ms Crawford’s disclaimer.
[45] Ms Crawford rather faintly suggested that if it were necessary to show malice, that
could be found in the Home Secretary’s failure to put forward any explanation for failing to
issue the status document for some 20 months. I do not understand how this point arises.
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27
If, as Ms Crawford concedes, the pursuer’s case is based upon there being a duty of care
owed to her by the Home Secretary, breach of such duty is established by proof that due
care was not in fact taken. In those circumstances it is not contended on behalf of the Home
Secretary that the pursuer would have to go further and prove malice or want of probable
cause. However, in any event, it simply will not do to raise the question of malice without
there being any averment of malice in the pleadings. If malice is to be part of the pursuer’s
case it must be pleaded with full particularisation, even if it focuses mainly or even
exclusively upon an inference sought to be drawn from the absence of any explanation by
the Home Secretary for her failure to issue the document. In this respect it is akin to an
Macfadyen at 569-570.
Applying the tribunals’ decisions
[46] A substantial part of the pursuer’s case is based on the assertion that the Home
Secretary had a duty “to obtemper both orders of the immigration tribunals and, ultimately,
to issue [the applicant] with a status letter in implementation thereof”. Ms Crawford did not
support this line of argument in her submissions. And rightly so, because neither the FtT
nor the UT made any order directing the Home Secretary to grant leave to remain or to issue
a status letter in accordance with her policy. They had no power to do so. Those tribunals
found only that the applicant’s removal from the United Kingdom would amount to a
disproportionate interference with her and her family’s Article 8 rights. It was then for the
Home Secretary to decide whether to seek to challenge those decisions or, if there was to be
no further challenge, to determine how to act consistently with them. In so far as the case
for the pursuer is premised upon an assertion that the tribunals ordered the Home Secretary
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28
to grant leave to remain, and that the Home Secretary was bound to obtemper such orders,
the action is plainly irrelevant.
[47] The averment in Article 3 of Condescendence, that the Home Secretary owed the
pursuer duties “to take care in the administrative implementation of the immigration
decisions in her favour” and “to ensure that she received a status letter which she could use
to obtain paid employment and/or access state benefits for herself and her children.”,
deserves more attention. It is in support of these averments that the pursuer advances her
argument that the Home Secretary owed the pursuer a duty of care to protect her from harm
(or to confer a benefit on her) by issuing, within a reasonable time of the promulgation of the
UT decision (and the expiry of the time for appealing against it), a status document enabling
her to obtain employment and/or to access benefits.
A public law duty?
[48] In her written and oral submissions, Ms Crawford emphasised that the pursuer does
not argue that the Home Secretary owed her any duty of care to exercise reasonable care to
protect her from harm, or to confer a benefit on her, when discharging statutory functions
and duties under the 1971 Act. But she argues that after the decision had been taken not to
challenge the decision of the UT, the only option available to the Home Secretary in terms of
her own guidance was to grant the pursuer discretionary leave to remain for a period of up
to 30 months and to issue the pursuer with a status document enabling her to obtain work
and/or access benefits. By that stage there were no other alternatives open to the Home
Secretary (I leave out of account that there was in theory at least still a decision to be made
as to the length of the period in respect of which discretionary leave to remain would be
granted). She was under a public law duty to act in this way. That public law duty to act,
and to act in a particular way, was an important plank in the argument that the Home
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29
Secretary also owed the pursuer a common law duty to take reasonable care to do these
things within a reasonable time. It was not clear to me, in listening to his submissions,
whether Mr McIlvride accepted that the Home Secretary was under a public law duty to act
in this way during that period and that her failure to do so put her in breach of that public
law duty.
[49] On this limited aspect of the case I consider that Ms Crawford is correct. Once the
UT had upheld the decision of the FtT to the effect that the removal of the pursuer from the
United Kingdom would amount to a disproportionate interference with her and her family’s
Article 8 rights, and once the Home Secretary had determined not to challenge that decision
and had become appeal rights exhausted, then in terms of her own policy the Home
Secretary was required to grant the pursuer discretionary leave to remain for a period of up
to 30 months. It is, to my mind, axiomatic that she should do so within a reasonable time. If
she did not do so, she would have been susceptible to an order made by the court on a
petition for judicial review. Standing the terms of her own policy, it is difficult to see what
answer there could have been. That is what I refer to when I say that the Home Secretary
was under a public law duty to act in this way. But I need not decide that finally for present
purposes. It would be sufficient for the pursuer, in an argument anent the relevance of her
pleadings, to maintain that it is at least arguable that the Home Secretary would have been
compelled by judicial review to issue her with discretionary leave to remain in accordance
with her policy and issue her with a status document. I consider that that is indeed highly
arguable; and for the purpose of the discussion that follows I proceed upon the basis that the
Home Secretary did indeed owe the pursuer a public law duty to grant discretionary leave
to remain and issue her with the status document.
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30
[50] Having said all that, however, I am not persuaded that this point takes the pursuer
of the public law duty of a highway authority to maintain the highway and whether that
public law duty translated into a duty of care at common law, the House of Lords appears
not to have considered that its analysis would have been any different depending upon
whether the failure by the public authority was a failure to exercise a power or a failure to
act in accordance with a public law duty: see, for example, Lord Hoffmann at para 32. One
can see the logic in saying it is more difficult to fashion a common law duty of care out of a
public law power, since the decision by the authority as to whether or not to exercise a
power involves a measure of policy, judgement and discretion on their part; but it does not
follow from this that a common law duty of care will readily be implied in the case of the
authority being under a public law duty.
[51] The difference between a power and a duty overlaps to a large extent with the
distinction, relied on by the pursuer, between policy (i.e. exercising discretion or judgment)
and operations (implementation of whatever policy decision has been reached). This
(at page 951):
“There are at least two reasons why the distinction [i.e. between policy and
operations] is inadequate. The first is that … the distinction is often elusive. … But
another reason is that even if the distinction is clear cut, leaving no element of
discretion in the sense that it would be irrational (in the public law meaning of that
word) for the public authority not to exercise its power, it does not follow that the
law should superimpose a common law duty of care.”
He went on, at page 953, as follows:
“In summary, therefore, I think that the minimum preconditions for basing a duty of
care upon the existence of a statutory power, if it can be done at all, are, first, that it
would in the circumstances have been irrational not to have exercised the power, so
that there was in effect a public law duty to act, and secondly, that there are
Page 31 ⇓
31
exceptional grounds for holding that the policy of the statute requires compensation
to be paid to persons who suffer loss because the power was not exercised.”
In N, at para 31, under reference to these passages, Lord Reed spoke of the distinction
between policy and operations having been “rejected” in Stovin v Wise. Accordingly, the
common law will not impose a duty of care to run alongside a public law duty, save for very
good reason.
Development of the law of negligence
[52] The law of negligence, particularly as applied to public authorities, has now to be
understood in light of the seminal decisions of the Supreme Court in a trilogy of recent
[53] In Michael, the Supreme Court made it clear that it was a mistake to regard Caparo
of whether and in what circumstances a duty of care may be owed by one person to another.
Lord Reed returned to this theme in Robinson:
“29. Properly understood, the Caparo case thus achieves a balance between legal
certainty and justice. In the ordinary run of cases, courts consider what has been
decided previously and follow the precedents (unless it is necessary to consider
whether the precedents should be departed from). In cases where the question
whether a duty of care arises has not previously been decided, the courts will
consider the closest analogies in the existing law, with a view to maintaining the
coherence of the law and the avoidance of inappropriate distinctions. They will also
weigh up the reasons for and against imposing liability, in order to decide whether
the existence of a duty of care would be just and reasonable. In the present case,
however, the court is not required to consider an extension of the law of negligence.
All that is required is the application to particular circumstances of established
principles governing liability for personal injuries.”
Duty of care – public bodies
[54] So far as concerns the position of public bodies, our attention was drawn to passages
in the judgment of Lord Reed in N, where he referred with approval to the earlier decisions
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32
WLR 1057, the significance of which, he said, “took time … to be fully appreciated”: N
para 34. A number of points can be taken from these cases which are of direct applicability
to the present case:
(1) Public authorities may owe a duty of care in circumstances where private
individuals would owe such a duty, unless that duty is inconsistent with or excluded
by the terms of any legislation imposing or regulating the duty: Stovin v Wise, per
Lord Hoffmann at 947, Robinson, per Lord Reed at paras 32-40, N at paras 31 and 65.
(2) Neither private individuals nor public bodies generally owe a duty of care to
confer benefits on others: N at para 28. The distinction is drawn between causing
harm, as in making things worse, and failing to confer a benefit, as in not making
things better. This terminology conveys the rationale better than the traditional
distinction between acts and omissions: and see also Robinson per Lord Reed at para
69 points 4 and 5. In the present case the duty allegedly owed by the Home Secretary
is, in this terminology, a duty to confer a benefit by granting discretionary leave to
remain and providing a status letter enabling the pursuer to access employment
and/or benefits.
(3) In considering whether a public body is liable in damages to an individual
claiming to have been harmed by its conduct, the first step is to ascertain whether the
relevant legislation under which it is acting itself creates a private right of action. If
the answer to that is in the negative, “it would be, to say the least, unusual if the
mere existence of the statutory duty could generate a common law duty of care”:
Gorringe, Lord Hoffmann para 23 (and see also para 32). The same point is made by
Lord Hoffmann in Stovin v Wise at page 952, cited with approval in N at para 31.
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33
(4) It follows that except in a case where the relevant statute expressly or by
implication itself creates a private right of action to run alongside the statutory duties
incumbent on the public body, the mere existence of a statutory duty is not sufficient
to give rise to a common law duty of care. There must be something more.
[55] Lord Reed provided a summary of the position in N at para 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.”
[56] It was Mr McIlvride’s submission that the present case fell into the second category.
In other words, the pursuer’s case was based solely upon the existence of the statutory
power or duty to grant discretionary leave to remain for a limited period and to issue a
status document to that effect. As such it was bound to fail for the reasons set out by Lord
Reed. Ms Crawford’s response was that this was a case falling within both the first and
third categories. There was no question here of such a duty being excluded by, or by
implication from, the terms of the legislation. The “danger”, viz the precarious situation in
which an applicant for leave to remain in the United Kingdom finds herself, being unable to
access work or benefits, was created by the Home Secretary. Her acceptance of the
tribunal’s ruling that removal from the United Kingdom would disproportionately interfere
with the applicant’s Article 8 rights, coupled with her policy setting out what was to happen
in such circumstances, meant that she had assumed responsibility for ensuring that the
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34
applicant was protected from that danger. If that meant imposing on the Home Secretary a
common law duty of care to confer a benefit on the pursuer, so be it; the circumstances of the
case justified that result.
[57] In N, at paras 66-73, Lord Reed discussed what is meant by an assumption of
responsibility in this context. He emphasised that that did not mean that an assumption of
responsibility could never arise from the performance of statutory functions. The distinction
is between the statutory duty itself, which cannot give rise to a common law duty of care,
and things undertaken in the performance of that duty, which might. Lord Reed concluded
his review of the relevant authorities at para 73 in this way:
“There are indeed several leading authorities in which an assumption of
responsibility arose out of conduct undertaken in the performance of an obligation,
or the operation of a statutory scheme. An example mentioned by Lord Hoffmann is
Phelps v Hillingdon, where the teachers’ and educational psychologists’ assumption of
responsibility arose as a consequence of their conduct in the performance of the
contractual duties which they owed to their employers. Another example is Barrett v
Enfield, where the assumption of responsibility arose out of the local authority’s
performance of its functions under child care legislation. The point is also illustrated
by the assumption of responsibility arising from the provision of medical or
educational services, or the custody of prisoners, under statutory schemes. Clearly
the operation of a statutory scheme does not automatically generate an assumption
of responsibility, but it may have that effect if the defendant’s conduct pursuant to
the scheme meets the criteria set out in such cases as Hedley Byrne and Spring v
Guardian Assurance plc.”
[58] The question therefore comes to this: what has the Home Secretary done in the
performance of her statutory obligations to justify the inference that she has assumed
responsibility to the pursuer to take reasonable care to grant her discretionary leave to
remain for a limited period and to issue her with a status document enabling her to access
work and/or benefits? To my mind we have been shown nothing that would come
anywhere near answering this question in favour of the pursuer. Ms Crawford was at pains
to point out, under reference to remarks of Lord Bingham in Customs and Excise Comrs. v
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35
each case the court must focus its enquiry on the particular facts and particular statutory
background. I accept this, but, as already pointed out, we have been shown nothing which
goes beyond a bare reliance on the Home Secretary’s policy document. In my opinion the
pursuer has failed to put forward any cogent basis for suggesting that the Home Secretary
has assumed responsibility to individuals in the position of the pursuer to act in accordance
with that policy document and to do so within a reasonable time. Put short she owes no
common law duty of care. The argument seems to me to be just another way of saying that
because the Home Secretary has a statutory duty to grant discretionary leave to remain for a
limited period and to issue the appropriate status document, then she has a common law
duty of care running alongside that statutory duty.
Other analogous cases?
[59] Before the sheriff, it was argued for the pursuer that the imposition of a common law
duty of care could be justified on the basis that it was consistent with a number of analogous
cases. Much attention was paid to Kanidagli and whether it should be regarded as
disapproved by the Court of Appeal in Mohammed. Ms Crawford did not spend much time
on this point. But she did not abandon it, and as well as Kanidagli referred to the first
House [2016] 1 WLR 2499. It is necessary to consider those cases. I propose to do so
chronologically.
[60] In Kanidagli2, the Home Office had allowed the wife of a refugee into the United
Kingdom but had mistakenly marked her status letter in such a way as to bar her from
2 As noted in a footnote to the judgment of the Court of Appeal in Mohammed, the appeal in Kanidagli
was allowed of consent, the Home Office having agreed to pay the claim in full.
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36
claiming benefits. Keith J concluded that it was fair, just and reasonable that an
administrative error of this kind, involving no judgement but simple administration and
with a predictable financial effect for which there was no other remedy, should be regarded
as arising out of a sufficiently proximate relationship to found a claim for damages. Key to
his reasoning was the fact that the error in that case occurred after any policy decisions had
been reached; it was purely a matter of implementation of what had already been decided.
In reaching his decision, the judge distinguished the decision of the Court of Appeal in W v
Home Office [1997] Imm AR 302 on the ground that the error in that case had occurred during
the policy or decision-making stage.
[61] Some or all of the reasoning in Kanidagli was disapproved by the Court of Appeal in
sued the Home Office, alleging breaches of a duty of care at common law. Home Office
officials had failed properly to implement Home Office policy with resulting detriment to
the individuals concerned and to their applications (ultimately successful) for leave to
remain. The leading judgment in that case was delivered by Sedley LJ. He rejected the idea
that any common law duty of care was owed by the Home Office in respect of things that
had occurred in the actual discharge of their functions. He rejected as “a distinction without
a difference” the distinction drawn by Keith J in Kanidagli when seeking to distinguish
between that case and the earlier decision of the Court of Appeal in W, essentially because
the crass error shown to have occurred in W itself had little to do with the decision-making
process in that case. It is arguable that that is not quite the distinction sought to be made by
Keith J – he was focussing on the different stages of the process, decision-making on the one
hand and implementation on the other, rather than on the nature of the error. However, it is
unnecessary to resolve that question. The distinction between policy and operations,
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37
between decision making and implementation of the decision, is no longer regarded as
critical: see N at para 31, under reference to the opinion of Lord Hoffman in Stovin v Wise.
To label something as mere operation or implementation does not, without more, mean that
that activity is subject to a common law duty of care. More than that is needed, as discussed
above.
prisoners. Cranston J held that after the Home Office policy had been established, the prison
authorities owed the prisoner a common law duty of care to implement that policy. In the
course of reaching the decision, the judge distinguished the cases of W and Mohammed on
the grounds that those cases had concerned acts or omissions during and forming part of the
policy or decision-making process, whereas in the case before him the failure was at the
implementation stage: see in particular para 44. That is the same distinction as was made by
Keith J in Kanidagli. It is not clear whether Kanidagli was cited, but clearly the judge was
referred to Mohammed which in turn contained a critical reference to Kanidagli. Without
meaning to cast doubt upon the decision on that aspect of the case, it seems to me that the
judge there paid rather more respect to the distinction between policy and operations than
would now be given to it in light of the recent Supreme Court authorities.
in the companies register to the effect that a particular company had gone into liquidation,
when in fact the information which was received by Companies House and which ought to
have been recorded on the register related to a different company. As a result the company
wrongly shown to have gone into liquidation went out of business. The error was due to a
systemic failure to ensure that policies were correctly applied and/or to an individual act of
carelessness. Edis J held that that the registrar owed a common law duty, to take reasonable
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38
care to ensure that a winding up order was not registered against the wrong company. He
so held on three separate but overlapping grounds: (i) assumption of responsibility; (ii) the
Caparo three-stage test; and (iii) the incremental approach.
[64] So far as concerned assumption of responsibility, the judge referred to a number of
cases in which it had been said that any assumption of responsibility must be “voluntary”.
294, the judge said this (at para 109):
“I understand this to mean that if a person does an act which is capable of causing
harm to a particular person if done carelessly he will be held to have assumed
responsibility to that person in respect of that task unless (where the act is done
further to a contractual duty or statutory function) the terms of the contract or the
statute negate or limit that responsibility.”
As I read this passage, the judge is saying that performance by a public body of a statutory
duty may without more give rise to a common law duty of care unless such a duty is
excluded by the terms of the relevant legislation. This does not sit easily with the remarks of
Lord Hoffman in Gorringe and in Stovin v Wise cited above and quoted with approval by
Lord Reed in N (see in particular at paras 31 and 65).
[65] The judge’s analysis in terms of the Caparo three-stage test was given before the
decisions in Robinson and N and the greater understanding of Caparo which emerges from
the judgments in those cases. I need say nothing about the judge’s approach to the
incremental test. Each case will fall to be decided on its own facts and the judge in that case
went into the relevant facts in great detail before arriving at the conclusion that a duty of
care was owed to a very limited class of persons in respect of a limited class of acts. I do not
consider that this decision assists the pursuer in the present case.
[66] For these reasons I do not consider that these first instance decisions provide any
assistance to the pursuer. They do not support the assumption of responsibility argument in
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39
this case. Nor do they provide a basis for proceeding to find a common law duty of care
here by analogy with other cases.
[67] It is impossible not to feel some sympathy for the pursuer in the circumstances of this
case. She did, however, have two possible means of redress. First, she could have petitioned
for judicial review based on the principle of legitimate expectation. Second, she could have
made a complaint to the Parliamentary Ombudsman.
Disposal
[68] I would hold that the pursuer’s case is irrelevant and should not be admitted to
proof. I would allow the appeal, sustain the first plea in law for the defender (the Home
Secretary), and dismiss the action. I would reserve all questions of expenses.
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40
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk
Lord Glennie
Lord Woolman
[2020] CSIH 47
XA128/19
OPINION OF LORD WOOLMAN
in the appeal
by
THE RIGHT HONOURABLE LORD KEEN OF ELIE, Her Majesty's Advocate General for
Scotland, as representing the Secretary of State for the Home Department
against
Defender and Appellant
MICHELLE ADEWEMIMO ADIUKWU
Pursuer and Respondent
___________________
Defender and Appellant: McIlvride QC, Pugh; Morton Fraser LLP
Pursuer and Respondent: Crawford QC, Dewar; Drummond Miller LLP
14 August 2020
[69] I have had the benefit of reading the opinions of the Lord Justice Clerk and
Lord Glennie. I agree with their reasoning and conclusions. I wish to add a few brief
observations.
[70] It is just and appropriate for this court to address the merits of the pursuer’s
argument, despite it having no sure foundation in her pleadings. That is subject to one
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qualification. There is no basis for a claim based on maladministration. That would require
specific averments of malice or want of probable cause.
[71] The sheriff held that the Home Secretary could owe a duty of care to the pursuer. In
The decision of the Court of Appeal in Mohammed & Ors v Home Office
[2011] 1 WLR 2862 pointed to the opposite conclusion.
[72] Matters have, however, moved on since then. The Supreme Court has revisited this
branch of the law. It has set out the relevant principles in Michael v Chief Constable of South
[73] In N Lord Reed advanced three propositions (at para 65), the second being 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”
[74] This case falls four-square into that category. The Home Secretary could have
prevented the pursuer from suffering harm by expeditiously issuing a status letter. But that
does not justify the imposition of a duty of care.