Registration – summary judgement – immunity
The case involved an application by the county council for summary judgement, based on the proposition that the claimants’ action alleging negligence and malicious prosecution had no realistic chance of success.
The first claimant, S, was the manager of a registered care home for the elderly known as Woodfield Lodge. She was also a director and majority share holder of the home, which was the second claimant. In 1995, the council had sought and obtained an ex parte emergency order from a magistrate, in accordance with s11 Registered Homes Act 1984, with the consequence that the home was closed immediately. The council then issued notification, under s12 of the Act, that the home’s registration was to be cancelled. The home’s appeal against the cancellation of its registration was rejected by the council’s social services sub-committee, but its appeal against the emergency closure order was allowed by the Registered Homes Tribunal. Before the appeal to the Tribunal against the cancellation of registration was heard, the council notified the claimants that the appeal would not be opposed.
Following these events, the home was re-opened but when S sought registration as the manager, she was notified that her application would be refused. S’s appeal was dismissed by the council and S brought proceedings in the High Court.
Hearing the council’s application for summary judgment, the judge agreed with its’ submissions that the tort of malicious prosecution was available in respect of criminal proceedings, save for a few well recognised exceptions. He found that the present claim in malicious prosecution did not fall within any of those exceptions and that there was no realistic prospect of persuading the court that the tort of malicious prosecution should be extended to civil proceedings in the manner sought by the claimants.
The judge, however, dismissed the council’s application in relation to the claim in negligence. Referring to Douce v Staffordshire County Council and S v Gloucestershire County Council, amongst other cases, he acknowledged that as far as the question of whether a duty is owed by local authorities in the exercise of their statutory functions is concerned, the law is in a developing state. It was established that it would be inappropriate to grant summary relief in respect of a claim which depended on principles of law which were in a state of flux. He concluded that it would therefore be wrong to accede to the council’s application for summary judgement in respect of that part of the claim based upon negligence.