Trent Strategic Health Authority v Jain & Another (2009) UKHL 4

Initially the Health Authority had obtained an order cancelling J’s registration under s30 of the Registered Homes Act 1984 (now replaced by s.20 Care Standards Act 2000) because of concerns that building works being undertaken at the home rendered the property unsuitable. The authority had not informed J that they intended to initiate proceedings and the proceedings had been heard on a without notice basis. As a result of the cancellation of his registration the home was closed and the residents were removed and placed elsewhere. J appealed to the Registered Homes Tribunal, the appeal was not heard for four months, but found that the concerns raised by the authority did not justify the immediate closure or a failure to warn J of the intended application. J had then sought damages from the authority for the economic loss suffered arguing that they owed a duty of care in negligence to him.  The Court of Appeal, in 2007, had held that the Health Authority had not owed J a duty of care when making an application, on an ex-parte basis, for the cancellation of their registration under s.30. J then sought a further appeal to the House of Lords.

The House of Lords determined that where legislation imposed a duty on the public authority to take action in the interest of protecting a particular class of persons the imposition of a tortuous duty towards any other persons who may be adversely affected would likely impede the authority from exercising the statutory duty, which would have, potentially, very serious consequences on the ability of the authorities to protect the intended class of persons. In most cases, the Court noted, the interest of those in the position of J would likely be in conflict with the intended class of persons to be protected under this legislation, namely the residents.

The House of Lords rejected the argument that economic damage could be remedied by the imposition on litigating parties of a common law duty of care in negligence. The Court held instead that, in respect of judicial proceedings, where there is potential for the proceedings to cause economic or psychiatric damage it is for the court, through the rules and procedures under which the litigation was conducted, to ensure proper control to mitigate against such loss. As such it determined that the Health Authority did not owe a duty of care in tort to J.
However the Lords did comment on the lack of safeguards built into the legislation for respondents, particularly in respect of ex-parte applications. They suggested using powers under s.144 and s145 of the Magistrates’ Courts Act 1980 to amending the procedures within s.20 CSA to ensure the safeguards were in line with those available to respondents to ex-parte applications in the High Court. In particular an applicant could be required to provide the respondent with short notice of the ex-parte application unless this was impractical, in addition the applicant should be required to provide full and fair disclosure, with sanctions available if there is a breach. There should be available an expedited appeal if necessary, The Court also commented that the Tribunal should have a discretionary power to require cross-undertakings from the applicant, with powers of enforcement, and a power to grant an immediate stay of the order. The House of Lords commented that, without the  proposed amendments, the procedure set out in s.20 CSA was incompatible with the   Human Rights Act 1998 as it did not afford those subject to without notice applications their rights under article 6 of the European Convention of Human Rights, namely the Right to a fair trail and Protocol 1, Article 1- the protection of property. They noted that, had the Health Authority acted post October 2000, J would have had access to remedies as set out in the Human Rights Act, but that as the actions pre-dated this legislation coming into effect, these were unavailable, unless J sought redress from the European Court directly.

Finally the Lords advised that magistrates adjudicating over similar ex-parte applications prior to any procedural amendments should ensure that they thoroughly question the Health Authority to ensure that, where such a risk occurs, no other action could be taken to protect the vulnerable residents other than the making of the cancellation order.

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