Jain & Anor v Trent Strategic Health Authority

The appellant (“Trent”) is the successor in title to the Nottingham Health Authority (“Nottingham”) which was at the material time the registration authority for the purposes of Part II of the Registered Homes Act 1984 (“the 1984 Act”) for nursing homes located in its area. In that capacity, Nottingham had certain powers of intervention, including a power to apply to a magistrate in an emergency for an immediate order for the cancellation of the registration of the proprietor of the nursing home without giving the proprietor any notice. The question at the heart of this appeal is whether the registration authority owed a duty of care at common law to the proprietor of a nursing home whose registration is cancelled under this procedure. It is said that there is a duty of care on the special facts of this case with respect to the investigation that preceded the application to the magistrate and the preparation and disclosure of the matters placed before the magistrate. Sir Douglas Brown, sitting as an additional judge of the Queen’s Bench Division, held that the common law imposed a duty of care on Nottingham. That was the principal determination of the judge, and it raises a point of general importance because the relevant statutory power, though now repealed, has been substantially re-enacted in the Care Standards Act 2000 (“the 2000 Act”), s 20. This new section applies not just to nursing homes but to other care homes as defined in s 3 of the 2000 Act, and in addition, children's homes, independent hospitals, independent hospitals in which treatment or nursing is provided for persons liable to be maintained under the Mental Health Act 1983, independent clinics, residential family centres, independent medical agencies, and domiciliary care agencies, nursing agencies, fostering agencies and voluntary adoption agencies (see s 4 of the 2000 Act). For simplicity I shall refer to Trent as if it had at all times been the registration authority under the 1984 Act.

The next part of this judgment contains a summary of the facts and the decision of the judge. Then I will formulate the issues and summarise the reasons for my conclusions. I have taken those issues in reverse order from that in which they were argued, that is, I have taken a shorter issue as to causation first and then the principal issue as to the existence of a duty of care. These two issues are independent of each other and success on either would be sufficient for Trent. After setting out the issues and my conclusions in summary, I then give my reasons for my conclusions. This involves a detailed examination of the case law on the duty of care cited to us and applicable to the situation in this case. I will also describe the relevant statutory scheme and the case law relevant to that scheme. As I explain more fully below, a number of considerations have led me to the conclusion that the judge erred in his conclusion on the existence in law of a duty of care on the part of Trent vis-à-vis the Jains.

Mr and Mrs Jain were the registered proprietors of a nursing home in Nottingham, subsequently renamed Ash Lea Court. The residents were elderly and infirm persons, often with mental difficulties. In 1996, Mr and Mrs Jain decided to have building works done to Ash Lea Court to upgrade it. They could not afford to close the home while the work was done. The works were expected to take about two years but they were still in progress in the summer of 1998. The works were delayed in part for reasons over which the Jains had no control. Trent made regular inspections. There was an incident in which access to a staircase caused concern and there was a complaint over the death of a resident and an incident in which a resident was slightly injured. However, there were no threats to close the home, and monitoring visits continued as usual. On 22 September 1998, the inspector wrote a letter to Mr and Mrs Jain to record what she had found on her last visit, and seeking information. The inspector stated that further monitoring visits would be made, so there was no suggestion at this stage of any need to close the home.

On 29 September 1998, the head of the inspectorate, Mrs Robertson, visited Ash Lea Court and found some defects that she considered posed a risk to residents such as torn carpeting and the fact that the staff were not properly trained to deal with these risks. This was not this time a routine inspection. Mrs Robertson visited Ash Lea Court in conjunction with police officers investigating a complaint about a fall and an injury which a resident had sustained. Mrs Robertson was concerned about the home for reasons which included concerns as to patient safety. She obtained the consent of her superiors to Trent making an application under s 30 for the cancellation of the Jains’ registration. That authorisation was given and an application was duly made to the magistrate.

A statement of reasons, which the judge described as “seriously deficient”, accompanied the application. For instance, it stated that there had been twelve deaths since February 1998 and that seven of these had been reported to the police. The reality was that the police were investigating one death only arising out of the complaint referred to above. The other deaths had been reported to the police because there was an obligation to do so where patients died without seeing a doctor in the fourteen days prior to their death.

The judge found that the decision to make an emergency application without notice to the Jains was unreasonable in the public law sense, ie he considered that no reasonable authority could have come to that decision.

Trent made the application on 30 September 1998 and the magistrate made the order. The home was immediately closed and Trent removed the residents to other accommodation. Mr Jain appealed to the registered homes tribunal (“RHT”). The RHT was highly critical of Trent's decision to apply to the magistrate and of the manner of its application. On 9 February 1999, after a two-day hearing, the RHT, on a submission of no case, allowed the Jains’ appeal and ordered that the order for cancellation should cease to have effect. However, the Jains were unable to resuscitate their business. The RHT did not consider whether grounds existed for cancellation of the Jains’ registration under the ordinary procedure (see ss 28 and 31 to 34 of the 1984 Act, below).

Before the judge, Mr and Mrs Jain contended that the decision to apply for an ex parte order had been made without any justification and was unreasonable in the public law sense. They also argued that the manner in which the application had been made was flawed. The judge held that there was no emergency and no deficiencies at the nursing home that could have justified the making of an application without notice. By the time that the application was made, the building works were near their end.

It was agreed by both leading counsel that the law relating to the liability of public authorities for negligence in the performance of their statutory duties was substantially set out in the judgment of Dyson LJ in Carty v Croydon London Borough Council [2005] 1 WLR 2312 at 2318, where he adopted a summary of the principles applying to the performance by public authorities of their statutory functions given by Hale LJ, as she then was, in A v Essex County Council [2004] 1 WLR 1881:

“Whenever the question of common law duty of care arises in the context of the statutory functions of a public authority there are three potential areas of enquiry: first, whether the matter is justiciable at all or whether the statutory framework is such that Parliament must have intended to leave such decisions to the authorities subject of course to the public law supervision of the courts; second, whether even if justiciable it involves the exercise of a statutory discretion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of the discretion; third, in any event whether it is fair, just and reasonable in the circumstances to impose such a duty of care. The considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them.”

The judge did not analyse the first two questions set out in the passage from the judgment of Hale LJ in Essex set out above because Trent did not contend that matters in issue were non-justiciable. Nor does the judge refer to the decision of this court in Martine v South East Kent Health Authority (1993) 20 BMLR 51, considered below at [75] to [77] and [97] to [99]. In Martine, this court decided, in a manner binding on this court, that the registration authority owed no duty of care to the registered proprietor of a home in the investigation and assessment of a case prior to making of an application under s 30. I will therefore need to consider the extent to which Martine concludes this appeal. I refer to this issue below as “the Martine issue”.

The judge accepted that the necessary degree of proximity existed in the present case between the Jains and Trent. He also held that the loss to the Jains was clearly foreseeable.

As to whether the imposition of a duty of care was fair, just and reasonable, the judge set out a passage from the dissenting judgment of Sir Thomas Bingham MR in X v Bedfordshire County Council [1995] 2 AC 633 at 663, where he held that:

“It would require very potent considerations of public policy which do not in my view exist here, to override the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied.”

I refer below to this important observation as the principle that in the absence of potent counter considerations wrongs should be remedied. The X case was appealed to the House of Lords. In his speech, Lord Browne-Wilkinson said (at 749):

“Sir Thomas Bingham MR took the view, with which I agree, that the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override their policy.”

Citing Lord Slynn in Phelps v Hillingdon LBC [2001] 2 AC 619 at 653, the judge held that, if a local authority alleges that the imposition of a duty of care would interfere with the performance of their duties, it is for them to establish that. The judge rejected the argument that Trent would have to look over its shoulder at the possibility of claims for negligence when arriving at difficult discretionary decisions. The judge held that that assumed that Trent was carrying out its duty in a proper manner and not in “the slip shod and rushed manner” adopted in the present case.

The judge noted that there was no case cited to him where a duty had been found in circumstances which approached those of the present case. The judge held that the failure to fulfil the duty of disclosure arising on a without notice application put this case “in a class of its own” ([54]). The judge considered that Mr and Mrs Jain had no satisfactory alternative remedy in the present case. He considered that the application bordered on the reckless. He concluded that:

“The law is not so deficient as to deprive the claimants of a remedy based on duty in the circumstances I have found here, even though it falls short of misfeasance or bad faith." ([55])

The judge went on to find that Trent had failed to act in accordance with a practice accepted at the time as proper by a responsible body of persons in the same field, and that the duty of care had been breached.

On causation, Trent argued that the magistrate's decision broke the causal link, but the judge rejected that argument. However, Trent took no issue with the pleaded allegations of negligence. The judge proceeded to make an order that Trent was liable for breach of the duty of care in damages for the loss suffered by the Jains. He ordered those damages to be assessed.

As I have explained, the principal issue is the correctness of the judge’s holding that Trent owed a duty of care at common law to Mr and Mrs Jain. There is, however, a shorter issue as to causation which, for the sake of convenience, I take first. There is no appeal against any of the judge’s findings of fact. There is no issue but that Trent could foresee that its carelessness might cause harm to the Jains. There are two issues of law on this appeal:

Mr McCaul submits that the magistrate was “not …a rubber stamp” (per HHJ Wilcox in Bowden v Lancashire County Council, transcript, page 10). He further submits that, given that the magistrate should have looked at the evidence and had the ability to ask questions, the loss resulting from his order cannot be attributed to Trent. This was so even though the RHT held that there was no case to answer. Mr McCaul draws attention to the dictum of Eady J in Strickland at [26] of his judgment to the effect that in practice there would be little scope for a magistrate to exercise independent scrutiny of the application but relies on the reasoning of May LJ in Bowden ([78] below).

Mr Ullstein seeks to uphold the decision of the judge. The magistrate could only make a decision on the material placed before him and if it was flawed to the point where (on the judge’s findings) the magistrate was seriously misled it must be possible that the magistrate would have reached a different conclusion if he had the proper information.

In my judgment, the magistrate, as Trent anticipated, made the order on the information provided by it. The order was consistent with the application made which, unlike the application in Bowden, was made on the basis of inaccurate information. Therefore, in my judgment, Trent is responsible in law for the loss resulting from the order of the magistrate. The position might have been different if the magistrate had made some order that was quite unexpected. The judge was not therefore in error in his conclusion on this point. On this basis, it is necessary to consider Issue 2.

The questions which arise under Issue 2 can only be answered when they are put into the setting of the relevant case law and the relevant statutory scheme. The common law governing the issue as to when a duty of care should be imposed has developed organically through decided cases. In order to understand the law, it is necessary to chart its development, and I propose to do that by considering the common law duty of care, firstly as between individuals and public bodies and, secondly, and as a subsidiary matter, as between persons involved in litigation. These are the two areas which in my judgment are broadly similar to the present case, and in my judgment they demonstrate the principles which this court should apply when considering whether there is a duty of care as between Mr and Mrs Jain on the one hand and Trent on the other hand. The evolution of the case law on the question of the common law duty of care as between individuals and public bodies is, however, complex, and it will be necessary for me to engage in a detailed consideration of the major cases before drawing together some observations. I will then consider much more briefly the common law duty of care as between persons involved in litigation, the statutory scheme in the 1984 Act and the case law relevant to that scheme. With those matters behind me, I will apply the law to the facts of this case in a passage headed “Analysis”.

Between Individuals and Public Bodies

The Jains do not rely in this action on any breach of statutory duty, or indeed on a breach of a statutory duty to take care. Their action is based upon the common law tort of negligence. The tort of negligence involves a duty of care, breach of that duty and loss caused by that breach. We are concerned with the first of those requirements. We are not concerned with breach of the duty of care because the judge found that there had been breaches, and there is no appeal from his findings on that point. Nor are we concerned with any question of loss, since the trial before the judge was only on liability and causation. If a duty of care exists, this case must be remitted to the High Court for an assessment of the damages.

It is axiomatic that a duty of care will not be found simply because loss occurs through another’s carelessness. The courts have now considered the circumstances in which a duty of care arises on numerous occasions and the law has been constantly refined.

The modern development of the tort of negligence began with the great case of Donoghue v Stevenson [1932] AC 562, where the appellant had suffered physical harm as a result of the consumption of negligently produced ginger beer. Historically the duty of care was developed to meet situations where a person had suffered physical harm as a result of another’s carelessness but the House of Lords in Hedley Byrne v Heller [1964] AC 1129 decided that the duty could exist in circumstances where the loss, as here, was purely financial.

We are only concerned with the development of the tort in so far as that development is relevant to the liability of public authorities for economic ( that is, purely financial) loss. I shall only examine a few of the authorities but further examples can be found in Part 3 of Remedies against Public Bodies: A Scoping Report (October 2006) by the Law Commission. Some understanding, however, of the history of the development of the tort since Hedley Byrne is necessary in order to understand the tort’s parameters in this area. Those parameters have implications for this case.

In my judgment, an appropriate starting point for the purposes of this case, involving as it does the question of the liability of a regulator to the person who is the subject of regulation, is the landmark decision of the House of Lords in Caparo plc v Dickman [1990] 2 AC 605. In that case, a purchaser of shares in a company, who had suffered loss as a result of making a takeover offer and buying shares in reliance on the financial position of the company as disclosed by the company's last annual accounts, sought to recover damages from the company's auditors on the grounds that their report on those accounts as required by the Companies Acts was negligently made. The House of Lords held that there was no duty of care in the circumstances. The report had been made to the members of the company to enable them to exercise control over the management of the company. It was no part of the statutory purpose of an audit report to provide prospective purchasers with information to help them make investment decisions. That was so even if the company was susceptible to an attempted takeover.

For the purposes of this case, four important points emerge from Caparo. Firstly, the House held that there was no general principle underlying the concept of the duty of care and that the question whether a duty of care exists should in principle be determined by analogy from situations in which the duty had already been held to exist and not by reference to some overarching general principle of liability. For convenience, I will call this new approach “the incremental approach to the duty of care". Secondly, Caparo confirms that a duty of care will not arise unless the parties are in a relationship of “proximity” and in addition the court is satisfied that the imposition of a duty would be fair, just and reasonable. Thirdly, the House provided guidance on the meaning of "proximity" in the context. Fourthly, the House provided guidance about applying the tests as to the existence of a duty of care against the backdrop of a statutory scheme.

I take these four points in turn. As to the incremental approach to the duty of care, Lord Bridge (at 618) and Lord Oliver (at 633-4), with both of whom the other members of the House agreed, approved, in preference to the approach adopted in the earlier decision of Anns v London Borough of Merton [1978] AC 728, the view of Brennan J in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43-44. Brennan J was a Justice of the High Court of Australia from 1981 to 1995 and Chief Justice of Australia from 1995 to 1998. The High Court of Australia accepted his incremental approach in preference to the view of another eminent Justice of the High Court, Deane J, that there should be categories of proximity. It is unnecessary to go into that matter. Brennan J’s view was as follows:

“Of course, if foreseeability of injury to another were the exhaustive criterion of a prima facie duty to act to prevent the occurrence of that injury, it would be essential to introduce some kind of restrictive qualification -- perhaps a qualification of the kind stated in the second stage of the general proposition in Anns [1978] AC 728. I am unable to accept that approach. It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations that ought to negative, or to reduce or limit the scope of the duty of the class of the person to whom it is owed."

This approach has significant implications for judicial determination of the existence of a duty of care. It means that the court must seek to find cases in which the courts have already considered the type of case with which it is currently faced. If so, it must use the principles established in the case to determine whether a duty of care exists in the case before it. Conversely, if it was held in the earlier case of the same kind that there was no duty of care, the same conclusion applies (subject to the doctrine of precedent) in the new case. That is not to say the duty of care cannot arise in a new situation. But any judicial development in the law is to be incremental and analogical rather than radical.

The incremental approach to the duty of care is important for another reason. As I explain below, the European Court of Human Rights (“the Strasbourg court”) initially took the view that the denial of a duty of care in the case of a public authority violated art 6 of the European Convention on Human Rights (“the Convention"), because the finding that there was no duty of care amounted to the grant of an immunity. It later took the view that on analysis the denial of a duty did not confer an immunity but, in accordance with the incremental approach, was merely a conclusion that there was no right of action under domestic law.

As to the requirements of proximity and that the imposition of a duty of care be fair, just and reasonable, it is sufficient to cite a passage from the speech of Lord Bridge, who, after reviewing recent authorities, held:

“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and a body to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party to the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any precise definition as would be necessary to give them utility as practical steps, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognizes pragmatically as giving rise to a duty of care of a given scope." (617-8)

In holding that it should be fair, just and reasonable to impose a duty of care, the House specifically envisaged that policy considerations would form an integral part of the court’s reasoning. This is significant because, in other areas of the law, the courts are warned not to have regard to questions of policy. Thus, in this context, issues about opening the floodgates, as it is called, may be relevant. This is apparent from the citation by both Lord Bridge and Lord Oliver from the well-known speech of Cardozo CJ in Ultramares v Touche (1931) 174 NE 441,444. Cardozo CJ refers, in one of the best-known passages in American jurisprudence, to the risk of “liability in an indeterminate amount for an indeterminate time to an indeterminate class." This is an invocation of the need to have control mechanisms in the law, or floodgates, to prevent excessive liability.

It is clear that the House considered it necessary to impose requirements of proximity and that the imposition of a duty of care be fair, just and reasonable in order to limit the range of people who might suffer economic harm as a result of a breach of a duty of care. As to the meaning of proximity, Lord Oliver concluded that the requirement of proximity and that it be fair, just and reasonable to impose a duty of care were:

"at least in most cases, in fact merely facets of the same thing, for in some cases, the degree of foreseeability is such that it is from that alone the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court's view that it would not be fair and reasonable to hold the defendant responsible.” (page 633)

Lord Oliver continued:

“ ‘Proximity’ is, no doubt a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances in which, pragmatically, the courts conclude that a duty of care exists.” (page 633)

Lord Oliver pointed out that there are circumstances in which, even if there is a close relationship between the parties, such as a relationship between a barrister and his client, the court may in certain circumstances deny liability. That led him to conclude that:

"…to search for any single formula which will serve as a general test of liability is to pursue a will-o'-the-wisp. The fact is that once one discards, as it is now clear that one must, the concept of foreseeability of harm as the single exclusive test - even a prima facie test - of the existence of duty of care, the attempt to state some general principle which will determine liability in an infinite variety of circumstances serves not to clarify the law, but merely to bedevil its development in a way which corresponds with practicality and commonsense.” (page 633E-F)

Lord Oliver amplified this point. He held that:

“ One must, however, be careful about seeking to find any general principle which will serve as a touchstone for all cases, for even within the limited category of what, for the sake of convenience, I may refer to as "the negligent statement cases," circumstances may differ infinitely and, in a swiftly developing field of law, there can be no necessary assumption that those features which have served in one case to create the relationship between the plaintiff and defendant on which liability depends will necessarily be determinative of liability in the different circumstances of another case. ” (page 635-6)

The fourth reason why Caparo is important in this case is that the House indicated that, in determining whether a duty of care exists where the defendant has acted in accordance with his powers or duties under a statutory scheme, it is relevant to consider the objectives and limits of the statutory scheme. The House accorded importance to the fact that the reason for having an auditor’s report under the Companies Acts was to enable the shareholders to monitor the activities of the company. It was no part of the statutory function to assist shareholders or others to make investment decisions. Thus, for instance, Lord Oliver held that there was nothing in the statutory duties of the company's auditors to suggest that they were intended by Parliament to protect the interests of investors in the market. This was not the end of the issue as to whether the duty of care existed since he went on to consider whether there was anything in policy or principle which made it desirable or appropriate to impose a duty of care (see pages 649-650). Likewise, Lord Bridge considered whether a duty could be owed to a shareholder alone with respect to investment decisions made by him (page 627E). However, the statutory scheme was a highly material consideration.

In Caparo, the relevant defendant was an auditor. An auditor is a professional person with duties imposed by statute who is employed by a company to report to the members on the company's accounts. While an auditor has been called a watchdog, but not a bloodhound (per Lopes LJ in Re Kingston Cotton Mill (no 2) [1896] 2 Ch 279), he is a regulator in the sense that he is a person called upon to discharge duties of monitoring another within limits for the benefit of a class of persons. But he is not like a regulator in the public sector who is appointed because of the public interest in the regulation of a particular industry and who is publicly funded. Accordingly, it is necessary in the present case to look at cases concerning statutory bodies and regulators to see if there is a type of case that covers this one. It is to be noted that in Caparo, in the context of an auditor, the House made no reference to factors such as the potential effect that the finding of liability to third parties might have on the willingness of persons to act as auditors. Wider considerations of that kind emerge from the later decisions concerning public bodies.

Some of the many important cases that have been decided since Caparo develop the concept of an assumption of responsibility but the Jains do not rely on that line of authority in this case. I propose to bypass many of the post-Caparo authorities and to go straight to the first important case concerning the question whether a public body owes a duty of care, that is, the decision of the House of Lords in X v Bedfordshire County Council [1995] 2 AC 633.

In this case, the plaintiffs were five children who claimed damages for personal injuries arising out of breach of statutory duty and negligence by the local authority. The authority had reason to believe that the children’s parents were neglecting them but failed to take steps to protect the children from harm. The local authority could have taken steps under powers conferred by statute to take the children into its care. This case was heard with a number of other cases, dealing with similar claims but I need only refer to X and then only to such part of the decision as is relevant to this case. The issue in X was whether the plaintiffs’ claims could proceed to trial or whether they should be struck out as disclosing no cause of action.

Lord Browne-Wilkinson, with whom all the other members of the House agreed, rejected the claim based on breach of a statutory duty of care and held that a claim would lie only if there was a breach of a duty of care at common law (pages 732 to 735). If the matter related to policy, for example questions of social policy or the allocation of resources, the courts could not enter into an assessment of such matters and a duty of care at common law could not arise. The matter would not be justiciable (pages 737 to 738). If Parliament had given the local authority discretion, the local authority would not owe a duty of care as to how to exercise the discretion (page 736A-B). But it might owe a duty of care as a result of the way in which it had in fact chosen to exercise the discretion: if the local authority exercises its discretion in a way in which no reasonable authority would exercise it, the exercise of the discretion would fall outside the statutory discretion and a duty of care might arise (pages 736 to 737). If the complaint relates not to the discretionary decision to do some act but to the implementation of that decision, the question whether there was a duty at common law would fall to be decided by applying the principles laid down in Caparo. The statutory framework would have a profound influence on the question whether there was a duty at common law (per Lord Browne-Wilkinson at page 739).

In the X case, the plaintiffs’ claims against the local authority for breach of the duty of care owed by it at common law were struck out as disclosing no reasonable cause of action (pages 748 to 751). The duty of care relied on was a duty to take reasonable care to protect children in respect of whom it received reports of neglect or ill treatment. Lord Browne-Wilkinson held that the first question was whether the alleged duty would require the court to consider matters that were not justiciable because they related to policy matters. The next question was whether the decisions of which complaint was made were matters within the ambit of the discretion that Parliament had conferred on the local authority. Lord Browne-Wilkinson held that it was possible that the plaintiffs might be able to demonstrate at trial that the decisions of the local authority was so unreasonable that no reasonable authority could have reached them and that therefore they fell outside the ambit of discretion conferred by a Parliament. There was no issue as to foreseeability, and so the remaining question was whether the relationship between the authority and the plaintiffs were sufficiently proximate and whether it was fair just and reasonable to impose a common law duty of care in all the circumstances. This last requirement applied to claims of physical harm as well as to those for economic loss.

Lord Browne-Wilkinson then considered whether it was just and reasonable to superimpose a common law duty of care on the local authority in relation to the performance of their statutory duties to protect children. He came to the conclusion that it was not. As the judge in this case noted, Lord Browne-Wilkinson expressed agreement with Sir Thomas Bingham MR on the principle that in the absence of potent counter considerations wrongs should be remedied. However, Lord Browne-Wilkinson considered that there were very potent counter considerations in the X case. First, the imposition of a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. The statutory scheme required joint action by police, educational bodies, doctors, social services and others. It would be unfair to impose a common law duty of care on only one of the participant bodies. Secondly, the task of dealing with children at risk was extraordinarily delicate. Thirdly, if liability and damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. This could prejudice the child at risk, and the increased workload would reduce the time available to deal with other cases and other children. The imposition of the duty could lead to disputes with the parents. There were other remedies, such as the means provided by statute to the investigation of grievances. Lastly, there was no category of case in which a duty of care had been held to exist that was analogous to the case before him. The courts had declined to impose a duty of care on the police in seeking to protect vulnerable members of the public from the wrongful conduct of others or on statutory regulators of financial dealings seeking to protect investors from dishonesty (Hill v Chief Constable of Yorkshire [1989] AC 53 and Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175). In neither case was a common law duty of care superimposed on a statutory regime. In his judgment, these cases were the nearest analogies to the case of X. The courts would have to proceed with great care before holding liable in negligence those who had been charged by Parliament with the task of protecting society from the wrongdoings of others.

Lord Browne-Wilkinson went on to reject the argument that the local authority was liable vicariously for the acts of the social workers and psychiatrists. He held that those persons did not undertake any general professional duty of care to the children. He held that if he was wrong on this the same considerations as led him to the view that there was no direct duty of care owed by the local authority applied with at least equal force to the question whether it was just and reasonable to impose such a duty of care on the individual social workers and psychiatrists (pages 751 to 754).

Having failed in the English courts, the plaintiffs took their claims to the Strasbourg court. They were no doubt encouraged to do so by the earlier decision of the Strasbourg court in Osman v United Kingdom (1998) 29 EHHR 245, where it was held that this court had violated the applicants’ right of access to court under art 6 by striking out as disclosing no cause of action the applicants’ action against the police for their failure to protect a family member from violence. The Strasbourg court held that this amounted to the grant of an immunity to the police ([152]). The subsequent decision of the Strasbourg court in the X case, called confusingly Z v United Kingdom [2001] 2 FLR 612, on which I sat as the (ad hoc) United Kingdom judge, was decided after the next case to which I refer was decided by the House of Lords, namely Barrett v Enfield LBC [2001] 2 AC 550.

In this case, a child had been taken into care. It is not necessary to go into the detailed facts but it was said among other things that the child had been placed with unsuitable foster parents. It was alleged that the local authority had failed to look after the child’s development properly while in its care. The question was whether the proceedings disclosed any cause of action. The House of Lords held that the X case was distinguishable and that the case could proceed to trial. The jurisprudence in the X case was considerably clarified and refined. Lord Browne-Wilkinson referred to the doubts and uncertainty created by the decision in Osman. Lord Slynn did not regard the fact that an act said to be negligent was within a statutory power would necessarily prevent an action in negligence but the fact that the act in question was within the scope of a power would be a guide to deciding whether the act was justiciable. He was reluctant to bring concepts of administrative law into the law of negligence (pages 570 to 571). In this he was in agreement with Lord Browne-Wilkinson in the X case and Lord Hutton (see page 586C-E). Moreover, at page 568H, Lord Slynn considered critically the alternative remedies that were available to the claimant and agreed with Sir Thomas Bingham MR in his dissenting judgment in the Court of Appeal in the X case when he held that: “I cannot accept, as a general proposition, that the imposition of a duty of care makes no contribution to the maintenance of high standards.”

Lord Hutton considered that a decision that fell within the ambit of the statutory discretion was not non-justiciable by reason of that fact unless it involved the weighing of competing public interests or was dictated by considerations which the courts were not fitted to assess (page 583C). He cited a passage from the speech of Lord Hoffmann in Stovin v Wise [1996] AC 923 at 951 where he held that the distinction between policy and operations was an inadequate tool with which to discover whether it was appropriate to impose a duty of care.

Lord Slynn and Lord Hutton thus accepted, albeit for differing reasons, that the fact that the public authority was exercising a statutory discretion and had not exceeded that discretion would not prevent the court from finding that there was a common law duty of care unless the matters in issue were of their nature ones which the courts could not assess. The speeches also recognise that difficult questions can arise as to what constitutes a matter of policy for this purpose: see, for example, per Lord Browne-Wilkinson at page 557.

As I have explained, this is not a decision of the English courts but of the Strasbourg court. One of the issues was whether the decision of the House of Lords in X had violated the plaintiffs’ Convention right of access to justice (art 6). On that question, art 6 was engaged because it was arguable that the plaintiffs had a cause of action. However, the Convention does not guarantee that a right has a particular content under national law. The striking out of the plaintiffs’ case did not violate art 6 or confer an immunity for the purpose of that article because the effect of the decision of the House of Lords was merely that there was no cause of action under national law. The court noted that the House of Lords had carefully weighed the considerations for and against the imposition of a duty of care ([95] to [102]).

I was a party to that decision but I also gave a separate concurring opinion on art 6. I drew attention to the incremental approach to the duty of care in a passage cited by the appellant in its supplemental skeleton argument:

“In my view, when the courts in England, proceeding incrementally under the common law system of judicial lawmaking, hold that a hitherto unconsidered category of harm does not as a matter of law fall within the tort of negligence, they cannot properly be described as creating an "immunity", whether blanket or limited (see the speech of Lord Browne-Wilkinson in Barrett v London Borough of Enfield [1999] FLR 426, [1999] 3 WLR 79, quoted at para 65 of the judgment in the present case). What the decision of the House of Lords in the present case did was to determine a legal issue fixing the limits on the substantive content of a domestic "civil right". ” (page 647)

The incremental approach to the duty of care is one way in which (in an appropriate case) English law controls the proliferation of the tort of negligence. But the law can still evolve to meet new demands upon it.

I now turn to one of the cases on which the appellant has relied most heavily.

This case was the lead case in three claims brought by the parents (and in one claim a child) against healthcare authorities and in one case a local authority claiming that they were liable directly or vicariously for psychiatric harm suffered as a result of allegations by healthcare and child care professionals that the claimant parents had abused their children. By the time this case was decided, the Human Rights Act 1998 (“the 1998 Act”) had been passed by Parliament and brought into force. (The 1998 Act did not apply to certain claims arising before its commencement but this restriction did not apply to the development of the common law by analogy with the 1998 Act). The trial judges held that there was no duty of care. This court ([2004] QB 558 at [79] to [88]) held that, if a claim were to be brought under the provisions of the 1998 Act which provide for claims to be brought against public authorities for violations of Convention rights, the court would have to enquire into the conduct of the public authority and its employees and thus the policy reasons, which led the House of Lords in X and subsequent cases to hold that there was no duty of care towards the child arises, would largely cease to apply. In those circumstances, this court concluded that the decision in X could not survive the 1998 Act. It followed that it would not be legitimate to rule that, as a matter of law, no common law duty of care was owed to a child in relation to the investigation of suspected child abuse and the initiation or pursuit of care proceedings: it would depend on the facts. However, because of the conflict of interest between the child and parent, this court considered that there were cogent reasons of public policy for concluding that where childcare decisions were being taken no common law duty of care was owed to the parents.

The House of Lords dismissed an appeal against this decision by a majority (Lord Nicholls, Lord Steyn, Lord Rodger and Lord Brown). There was clearly evidence about the prevalence and iniquities of child abuse and the need for healthcare professionals and social services to take measures to address it. Lord Nicholls, in his speech, compared the interests of the child with those of his parent and raised the issue of the appropriate level of protection for a person erroneously suspected of child abuse ([74]). He held that the essence of the claims was that health care professionals responsible for protecting a suspected child victim owed a person suspected of having committed a crime against the child a duty to investigate their suspicions, the duty sounding in damages if they acted in good faith but carelessly ([76]). He noted that, in the area of reporting and investigation of suspected crime, the appropriate balancing point between the public interest and the interest of the suspected individual was the presence or absence of bad faith ([77]). He concluded that, when faced with suspicions of child abuse, doctors had to be able to act single-mindedly in the interests of the child and should not be subject to potentially conflicting duties when deciding whether a child may have been abused or when deciding whether their doubts should be communicated to others or when deciding what further investigatory or protective steps should be taken ([85], [86]). Accordingly, he held that as a general rule there was no duty of care to the parent. He rejected the idea that the duty of care as a control mechanism should be abandoned in favour of an examination in each case of the severity of the breach.

Lord Rodger and Lord Brown agreed with Lord Nicholls and each other, but also gave reasons of their own. Lord Rodger did not find it helpful to bear in mind that the public policy consideration that had first claim on the loyalty of the law was that wrongs should be remedied. He gave several examples of wrongs which are not remedied by the law ([100] to [104]). He concluded that there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents. Lord Brown noted that the appellants’ submission was that there was no conflict between the interests of the child and those of the parent. The child’s interests were always paramount. Lord Brown considered this submission unsustainable. He considered that a duty to the parent would impact upon the doctor's approach to his task and create a conflict of interest. He would no doubt be aware that the negligent diagnosis of child abuse would render him liable to both the child and the parent. The evidence before the House in the form of statements confirmed this. The evidence showed that, in some cases, there would have to be further investigations, which would prove to be ill founded. An attempt to discharge a duty to the parent could put the child at risk ([128] to [132]). He said that as a general rule courts were astute not to create a conflict of interest ([135]). He concluded that the doctor's awareness of the proposed duty would have an insidious effect on his mind and conduct subtly tending to the suppression of doubts and instincts that in the child's interests ought rather to be encouraged. He also considered that there was a need to protect the doctor against the risk of costly and vexing litigation. He considered that there was a risk of parents bringing unfounded litigation in order to redeem their reputations ([137]).

Lord Bingham, dissenting, would have allowed the parents’ claim to go to trial ([4]). Lord Bingham considered that the interests of parents and children were not so dissonant that healthcare professionals should proceed without fully informing and consulting the parents. But he also recognized that there would be "occasions when emergency action must be taken without informing parents, and when information must for a time be withheld."([44]) This would not, however, prevent the imposition as a general rule of a duty of care on health care professionals that they should have close regard to the interests of the parents as well as the children ([44]). He contemplated that it might be better if there were a shift in emphasis from consideration of a duty to consideration of a breach but he contemplated that there would have to have been, in the case of the parents, a more serious breach, and "a very clear departure from ordinary standards of skill and care" ([49]). That would bring English law more into line with that of France and Germany ([49]). He was clearly concerned that there was no duty of care in cases, for instance, where there had been serious violations of Convention rights (see [22]).

The D case turned on the question whether the imposition of a duty was fair, just and reasonable. There was no issue as to justiciability, foreseeability or proximity.

We have been taken to four cases in which public bodies had issued inaccurate certificates or advice and the claimant sought damages for loss incurred as a result. Thus in Philcox v Civil Aviation Authority (“CAA”), Times 8 June 1995, the plaintiff alleged that the CAA had negligently issued a certificate of airworthiness shortly before the plane in question crashed. The plaintiff had failed to maintain his aircraft properly. This court (Staughton, Millett and Ward LJJ) held that the CAA owed no duty of care to the owner. In Reeman v Department of Transport (1997) 2 Lloyd’s Rep 674, this court (Lord Bingham of Cornhill LCJ and Peter Gibson and Phillips LJJ) held that a government department which had issued an incorrect safety certificate for a fishing vessel did not owe a duty of care to a person who bought the vessel in reliance on the certificate and who suffered economic loss. The object of the alleged scheme in this case was to promote safety at sea, and not to protect the economic interests of owners of vessels. The certificate was not issued to assist purchasers of ships. In Harris v Evans [1998] 1 WLR 1285, the plaintiff provided bungee jumping facilities. A health and safety inspector issued advice to local authorities, requiring certain steps to be taken. It was later established that this advice was wrongly given, but by that time improvement prohibition notices had been served on the plaintiff and in part at least complied with by him. The plaintiff brought an action to recover damages for financial loss that he had suffered on the basis of (among other things) alleged negligence on the part of the inspector and the executive body by whom he was employed. The action was struck out. Sir Richard Scott VC, as he then was, in his judgment, with which the other members of the court (Auld and Schiemann LJJ) agreed, examined the relevant statutory scheme and noted that it was imposed for the protection of members of the public. He considered that a duty of care would be very likely to "engender untoward cautiousness" (page 1298). He held that no duty of care was owed to the owner of a business if an improvement notice was served. It was implicit in the legislation that improvement notices might cause economic loss, and it would be detrimental to the operation of the planning legislation of authorities were to be exposed to potential liability in negligence. The legislation itself provided for appeals against the issue of improvement notices, and an appeal acted as a stay on the operation of the notice. However, in Perrett v Collins (1998) 2 Lloyd’s Rep 255, this court (Hobhouse, Swinton Thomas and Buxton LJJ) held, on an appeal on a preliminary issue, held that the body issuing the certificate of airworthiness for a light aircraft owed a duty of care to a passenger in that aircraft, who was injured when that plane crashed on its first flight. Philcox and Perrett are clearly distinguishable on their facts. Both Harris and Reeman provide useful guidance for the purposes of this case in that they both emphasise the need to identify the objects of the legislation under which the public body is acting. But the Jains’ case does not rest upon an alleged wrong consisting of an inaccurate representation on which they relied. The Jains’ case is that Trent was incompetent in the investigation that it made into the state of affairs at Ash Lea Court and in the presentation of information to the magistrate. In that respect, all these four cases are distinguishable.

This brief survey demonstrates the difficulty in establishing a duty of care against a public body. Five particular points seem to me come out of the authorities summarised above which are relevant to this case. First, the cases demonstrate the importance of the incremental approach to the duty of care. The courts develop the law very cautiously where the allocation of public resources is involved. Secondly, it is evident that the courts are reluctant to impose a duty of care if this would result in the defendant public body having a duty to a person at common law that is liable to be in conflict with the duty of care owed to the primary beneficiary of the statutory scheme. Thirdly, at least where loss to the claimant is not only foreseeable but the claimant is in a close relationship with the public authority and has suffered as a result of the incompetence of the public authority, it is the public authority which has to satisfy the court that a duty of care should not lie. More cogent reasons are needed than simply showing little more than that the defendant is a public authority.

Fourthly, in X, justiciability was a major consideration if the acts complained of were committed when the authority was exercising a statutory power. However, it is now clear from Barrett that that fact does not exclude the imposition of a common law duty of care. In the present case, the parties cited to the judge the helpful statement of the law by Hale LJ in Essex (above, [9]). That sets out three potential areas of enquiry that arise whenever the question of a common law duty of care arises in the context of statutory functions. The first is whether the matter is justiciable at all and the second is whether even if it is justiciable a duty of care would only arise if the public body acted in a way that was so unreasonable as not to amount to an exercise of the discretion at all. The third is whether it is fair just and reasonable to impose a duty of care.

The first at least of those lines of enquiry has assumed less importance as the law has evolved in recent years. As the judgment of the Court of Appeal in D demonstrates, following the 1998 Act, courts have now to consider questions of social policy with which they were not previously concerned. From this, in my judgment, it is possible to conclude that courts will hold that fewer matters are now non-justiciable on the grounds that they involve policy issues. The second line of enquiry also as it seems to me reflects a concern about justiciability. Moreover, we have also seen from Barrett that the courts are now reluctant to introduce administrative law concepts into the law of negligence, and that would seem to me to be the result if in any case the court were to conclude that there should be liability only if the act was actually outside the statutory discretion. In the circumstances, I conclude that the first two lines of enquiry in the statement by Hale LJ in Essex, are not likely in future to be as important or to have the same weight as the third line of enquiry.

In the present case, no argument has been addressed to this court on justiciability. In the circumstances it is not necessary for me to consider it further in this judgment.

The fifth point which I draw from the authorities summarised above is that the 1998 Act has also had a perceptible impact in this field. As a result of that Act giving further protection in domestic law to Convention rights, the courts are now more conscious that the denial of a duty of care may result in a violation of Convention rights. The effect has been to encourage courts to identify more specific policy factors and to consider the interests of the individual affected by the decision-making by the public authority. This led the House of Lords in D to consider whether to shift the emphasis from duty to breach but the majority largely rejected this. In the result, the duty of care remains a major control mechanism for the purpose of controlling the potential opening of the floodgates in this field.

Between Persons Involved In Litigation

Normally speaking, a party and its legal representatives in civil proceedings owe no duty of care to the opposing party: see Business Computers International Ltd v Registrar of Companies [1988] Ch 229 and Al-Kandari v J.R.Brown & Co [1988] QB 665. These authorities were cited with approval by the House of Lords in the recent case of Customs & Excise Commissioners v Barclays Bank Plc [2006] 3 WLR 1. That case concerned the question whether a bank owed a duty of care to a claimant in civil proceedings, who had obtained a freezing injunction over accounts held with it, so as to be liable to the claimant for money removed from those accounts through its carelessness. It was unanimously held that the bank owed no duty of care. Various reasons were given. There was considerable discussion about assumption of responsibility, which does not arise on this appeal. Lord Bingham relied on a number of factors. For example, if the bank failed to comply with a freezing injunction, contempt proceedings could be commenced against it. There was no analogous case in which a party had been held to be subject to a duty of care in similar circumstances. It was not fair, just or reasonable to impose a duty of care as it had had no opportunity to resist the order. Lord Hoffmann held that the critical factor was that the duty depended on the service of the order, which did not generate a duty of care. Lord Rodger considered that the sanctions for contempt were sufficient. He, Lord Walker and Lord Mance emphasised that there was no voluntary assumption of responsibility by the bank. Like Lord Hoffmann and Lord Mance, Lord Walker did not place reliance on the litigation context. The bank did not have a conflict of duties in relation to the party obtaining freezing order and its own customer. Lord Mance identified a number of factors that were relevant to whether it was fair, just and reasonable to impose a duty of care, including any conflict between the duty of the bank to the claimants and its duty to the court or its own customer, and he held that there was no such conflict.

An analogy can be drawn with criminal investigations. The House of Lords has held that the police owe no duty of care to a suspect: Calveley v Chief Constable of the Merseyside Police [1989] 2 WLR 624. Lord Bridge held:

“Finally, all other considerations apart, it would plainly be contrary to public policy in my opinion to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.”

The House of Lords has also held that the police owed no duty of care to individual members of the public in the conduct of their investigations (Hill v Chief Constable of West Yorkshire [1989] AC 53) and this court has held that the Crown Prosecution Service owe no duty of care to the defendant (Elguzouli-Daf v Commissioner of the Metropolis [1995] 2 WLR 173). This is so even though the prosecutor owes a professional and ethical duty to take care in preparing and presenting the case against a defendant, whom he is prosecuting: see per Lord Rodger in Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 at [38].

I now turn to the material provisions of the 1984 Act, and I will describe them in this judgment as if they had not been repealed and replaced by the Care Standards Act 2000. The 1984 Act provides for the registration of persons carrying on nursing homes, and authorises the Secretary of State to make regulations for the inspection of registered nursing homes. It is not lawful to carry on a nursing home without registration. A registered person must comply with the requirements imposed by law, such as the obligation to file an annual return. The registration authority may inspect the premises at any time. The register of persons authorised to carry on nursing homes is open to inspection.

The 1984 Act provides two methods whereby the registration of a person carrying on a nursing home can be cancelled. In the case of an emergency, the Secretary of State can apply to a magistrate for an order cancelling the registration of a person in respect of a nursing home: s 30. It also provides for cancellation of registration in a non-urgent case under s 28. When the Secretary of State makes an application under s 30, the application may be made without notice to the person whose registration is in question. If, however, the Secretary of State proposes to use his powers under s 28, he must give notice to the person registered in respect of the home and that notice must set out the Secretary of State’s reasons for the proposed cancellation. The 1984 Act does not oust the court’s supervisory powers over the Secretary of State, and accordingly any decision of the Secretary of State to make an emergency application may be challenged on conventional principles.

It is a fundamental principle of law that courts should not make decisions without hearing both parties save in the rarest of cases. It is therefore self-evident that s 30 should only be used in an emergency and in a situation where the need to protect the residents and the urgency of the situation outweigh the right of the registered proprietor to be heard first.

S 28 and ss 30 to 34 of the 1984 Act so far as material provide:

“28 Cancellation of registration

The Secretary of State may at any time cancel the registration of a person in respect of a nursing home…

(a)

on any ground which would entitle him to refuse an application for the registration of that person in respect of that home;...

Urgent procedure for cancellation of registration etc

(1)

If –

(a)

the Secretary of State applies to a justice of the peace for an order –

(i)

cancelling the registration of a person in respect of a nursing home or mental nursing home;

(ii)

varying any condition for the time being in force in respect of a home by virtue of this Part of this Act; or

(iii)

imposing an additional condition; and

(b)

it appears to the justice of the peace that there will be a serious risk to the life, health or well-being of the patients in the home unless the order is made,

he may make the order, and the cancellation, variation or imposition shall have effect from the date on which the order is made.

(2)

An application under subsection (1) above may be made ex parte and shall be supported by a written statement of the Secretary of State’s reasons for making the application.

(3)

An order under subsection (1) above shall be in writing;

(4)

Where such an order is made, the Secretary of State shall serve on any person registered in respect of the home, as soon as practicable after the making of the order, -

(a)

notice of the making of the order and of its terms; and

(b)

a copy of the statement of the Secretary of State’s reasons which supported his application for the order.

31.

Ordinary procedure for registration etc under Part ll

(1)

Where –

(a)

a person applies for registration in respect of a nursing home or mental nursing home; and

(b)

the Secretary of State proposes to grant his application,

the Secretary of State shall give him written notice of his proposal and of the conditions subject to which he proposes to grant his application.

(2)

The Secretary of State shall give an applicant notice of a proposal to refuse his application.

(3)

Except where he makes an application under section 30 above, the Secretary of State shall give any person registered in respect of a nursing home or mental nursing home notice of a proposal –

(a)

to cancel the registration;

(b)

to vary any condition for the time being in force in respect of the home by virtue of this Act; or

(c)

to impose any additional condition.

(4)

A notice under this section shall give the Secretary of State’s reasons for his proposal.

32.

Right to make representations

(1)

A notice under section 31 above shall state that within 14 days of service of the notice any person on whom it is served may in writing require the Secretary of State to give him an opportunity to make representations to him concerning any matter which that person wishes to dispute….

33.

Decision of Secretary of State

(1)

If the Secretary of State decides to adopt the proposal, he shall serve notice in writing of his decision on any person on whom he was required to serve notice of the proposal….

34.

Appeals

(1)

An appeal against –

(a)

a decision of the Secretary of State under this Part of this Act; or

(b)

an order made by a justice of the peace under section 30 above,

shall lie to a Registered Homes Tribunal….

(5)

On an appeal against an order made by a justice of the peace the tribunal may confirm the order or direct that it shall cease to have effect.”

By virtue of directions made pursuant to s 13 of the National Health Service Act 1977, the powers of the Secretary of State with respect to the registration and the cancellation of registration of nursing homes to which Part 1 of the 1984 Act applies were vested in the local health authority.

The courts have had to consider these or similar provisions from time to time. This court has had to consider the relationship between the emergency procedure and the ordinary procedure for cancellation. In Lyons v East Sussex CC (1987) 86 LGR 369, the registration authority had applied to the magistrate for an order to cancel the registration of the proprietors of a residential care home. Such a home is subject to provisions in Part 1 of the 1984 Act that are similar to those with which we are concerned. The magistrate granted the application. The registered proprietor appealed to the RHT. The RHT did not come to a conclusion but stated certain questions for the opinion of the High Court in a special case. The appeal heard by this court was an appeal from the High Court at the instance of the registration authority on the questions whether, on the appeal before the RHT, the registration authority could adduce evidence relating to grounds for refusal of registration and whether if the RHT found that the evidence showed that the proprietor was not a fit person to carry on a home but failed to prove a serious risk to the life, health or well-being of the residents, the RHT should confirm the order. This court answered the latter question in the negative. We are concerned with certain observations made by this court. Glidewell LJ gave the first judgment. In the course of his judgment, he expressed the view that it was clear that the application could be made ex parte or on notice (page 374). Sir John Donaldson MR and Sir Denys Buckley agreed with him. Glidewell LJ also observed that the 1984 Act was intended to protect those in the community who were the most vulnerable. Sir John Donaldson MR expressed the view that, if an application was made under the equivalent of s 30, there should also be a proposal under the equivalent of s 31.

The relationship of the emergency procedure to judicial review proceedings was considered by Laws J, as he then was, in R(Wilson) v Ealing and Hounslow HA (1995) 30 BMLR 92, the health authority had applied for and obtained an order cancelling the registration of the applicants under s 30 of the 1984 Act. The applicants appealed. They also started judicial review proceedings and obtained a stay of all proceedings in respect of the cancellation of their registration until the determination of their appeals. On the hearing of the judicial review application, Laws J held that the court should not grant judicial review unless there was bad faith, perversity or substantive unfairness, which was not made out. He held that the applicants had enjoyed "an indulgence not contemplated by the statutory regime". He held that the intention of the legislature in enacting s 30 was to provide firm and prompt protection of the interests of very vulnerable members of society. Anyone running a home had to be taken to know this. It was not for the court to displace the statutory procedure.

As I mentioned at [10] above, this court has also had to consider whether a duty of care arises at common law when the registration authority makes an application under the emergency procedure. In Martine v South East Kent Health Authority (Dillon, Leggatt and Hirst LJJ), the appellant was the proprietor of a registered nursing home. The health authority made an ex parte application under s 30 of the cancellation of the appellant’s registration. The magistrate made the order. The effect of the order was to close the nursing home and the patients were removed that day. The appellant’s appeal to the RHT succeeded. The health authority did not oppose the appeal but the appellant found that it was impracticable for her to reopen the nursing home. The allegations included breach of the duty of care fully and properly to investigate the case and to consider whether the conditions were satisfied before making an ex parte application. The issue was whether those allegations should be struck out as disclosing no reasonable cause of action. Dillon LJ observed that there was no provision whatever for an inter partes hearing before the magistrate, nor was there any provision for an application to the magistrate by the proprietor to revoke his order (transcript, page 7). The remedy for the owner of the home was to appeal.

Dillon LJ considered whether it was just and reasonable to impose a duty of care. He cited the decision of Scott J, as he then was, in Business Computers Ltd v Registrar of Companies, and drew an analogy with the denial of a duty of care on the part of one party to litigation to another. Dillon LJ put the matter thus:

“So it is, in my judgment, with the statutory procedure under section 30 of the 1984 Act. That section is concerned to provide an urgent procedure in cases where there will be a serious risk to the life, health or well-being of the patients in the home unless the order cancelling the registration is made. Therefore, it is envisaged that the application may be made ex parte, without the delay of giving notice to the registered proprietor, and without the procedure of giving information to the registered proprietor of the grounds of the application. It is intended to be urgent. But the check on that is that it is not the Secretary of State or the area health authority, on his behalf, who makes the order. It is the justice of the peace. The justice of the peace is intended to act properly in a judicial or quasi- judicial capacity and to be satisfied that there will be a serious risk to the life, health or well-being of the patients unless the order is made.

Mr Ellis submits that the reality of the situation is that the justice of the peace will simply rubber-stamp whatever is put before him or her by the area health authority because, if the area health authority is asking for cancellation of the registration because of a supposed possibility of a risk to the life or health or well-being of the patients, the justice of the peace cannot do otherwise, realistically, than make the order for fear that, even though the risk may seem extremely slight and not made out, nonetheless there might be a disaster which would hit the headlines in the press a few days later while any other procedure was being followed through at greater leisure. That is, in effect, saying that the check and balance that the statute has provided will not work because justices of the peace will not have the courage to do their duty, and will abdicate that duty in favour of giving the area health authority whatever it wants. But I do not see that the law can determine whether a duty of care arises or whether it is just and reasonable that there should be such a duty on the basis that justices of the peace will not do their duties. If the area health authority fails to put an adequate case before the justices of the peace it would be the duty of the justices of the peace to ask for more information or reject the case until it has been more fully made out.”

Dillon LJ concluded as the first ground for his decision that if a health authority, in deciding whether it is necessary or appropriate to invoke the urgent procedure under s 30 has to look over its shoulder and consider whether it is going to expose itself to a claim for negligence, it might be that an application which was, in truth, warranted on account of the life, health or well-being of the patients will not be made until it is too late. Dillon LJ gave a second ground for his decision but it is not necessary to go into that. He therefore dismissed the appeal. Leggatt and Hirst LJJ agreed with Dillon LJ, and also gave short judgments of their own. The appellant was thus confined to her claim for malicious prosecution.

In Strickland v Woodfield Lodge Ltd, 20 March 2003, unreported, Eady J refused to strike out a claim that the health authority owed a duty of care when making an application for cancellation of a proprietor’s registration under Part 1 of the 1984 Act without notice to him. The proprietor had appealed and the appeal had been allowed by the RHT. There was further opposition to the registration of the manager when the business reopened. Eady J recalled that the purpose of the legislation was to protect the interests of vulnerable individuals and not the commercial interests of the proprietors. The judge referred to Martine but held that the law had moved on since the decision in Martine and that indeed there had been developments in the law since X v Bedfordshire. In those circumstances he refused to strike out the negligence claim. This decision then does not materially assist on the appeal before us. A different course was taken by HHJ Wilcox, sitting as a deputy judge of the Queen’s Bench Division, in Bowden v Lancashire CC, unreported, 17 January 2001, acting under a different but similar statutory framework. This case concerned childminders. The local authority applied for cancellation of the registration of Mrs Bowden, who had been registered as a person entitled to provide day care within the meaning of section 71 of the Children Act 1989. It was not alleged that the authority owed her or her husband, with whom she ran the business of providing day care for young children, a duty of care in relation to its discretion to decide whether or not to seek cancellation of her registration but it was alleged that it had made an ex parte application under the emergency procedure in section 75(3) when it was inappropriate or unreasonable to do so. The judge disagreed. The object of the Children Act 1989 was to protect children. One had to take into account the role of the magistrate. He made the decision. That was part of the scheme of checks and balances that protected the childminder in circumstances such as these. The fact that it did not work in that case was not something that could be laid at the door of the local authority. The fact that there were in place checks and balances together with other reasons led the judge to conclude that there was no common law duty of care. There was an appeal to this court but it was filed out of time. Peter Gibson and May LJJ refused an extension of time. In his judgment, with which Peter Gibson LJ agreed, May LJ held that it was the justices who made the order, but in this case there was no allegation that the justices had been misinformed.

I have not found in any of the authorities to which we have been referred any explicit discussion of what is meant by the requirement in s 30(1)(b) that there should appear to the magistrate to be a serious risk to the life, health or well-being of residents unless the order is made. However, in my judgment, it is implicit in that requirement that there should be a significant risk that the residents will suffer harm within the timescale that would otherwise be required under the ordinary procedure provided for by ss 28 and 31 to 33. That question involves making a judgment on a number of matters, including the vulnerability of the residents, the seriousness of the shortcomings of the home and how long it would take for the proprietors to put them right. The last-mentioned matter would involve not only technical knowledge about any work needing to be done and the availability of contractors or staff but also knowledge built up over a period of time about the ability of the proprietors to respond to calls to action. It is noteworthy that the powers given to the RHT on appeal do not include the payment of any compensation to the registered person if his appeal is successful.

When an order is made without notice to the other party, the court will as a normal rule require a cross-undertaking in damages to be given. However this is only a rule of practice and it is not clear whether this rule is applied in magistrates’ courts or that magistrates have power to accept cross- undertakings. In any event, the rule is not generally applied where the applicant is a public authority, which makes the application in order to comply with its public duties: see F.Hoffmann- La Roche & Co AG v Secretary of State for Trade & Industry [1975] AC 275. The Jains submit, in a written submission filed at the court’s request after the date of the hearing, that the magistrate should require a cross-undertaking, but I do not consider that that question needs to be resolved on this appeal.

The duties to the court of a party making an application without notice are well established. They were explained in Marc Rich & Co v. Krasner [1999] EWCA Civ 581, where Morritt LJ said:

“It is well-established that an applicant who applies for relief ex parte is under a duty to investigate the facts and fairly to present the evidence on which he relies. The duty is clearly described by Bingham J, as he then was, in Siporex Trade v Comdel [1986] 2 Ll.L.R. 428 at 437, where he said:

“[…] Such an applicant must show the utmost good faith and disclose his case fully and fairly. He must, for the protection and information of the defendant, summarize his case and the evidence in support of it by an affidavit or affidavits sworn before or immediately after the application. He must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents. He must investigate the nature of the cause of action asserted and the facts relied on before applying and identify any likely defences. He must disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of matters he has omitted to state. If the duty of full and fair disclosure is not observed the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.””

If, therefore, a party wishes to show that the duty has been breached, he does not have to show that the party alleged to be in breach intended to breach the duty.

In Memory Corporation plc v. Sidhu [2000] 1 WLR 1443, at 1453, Robert Walker LJ described the duty of full and frank disclosure as “compelling”. This principle went back to Castelli v. Cook (1849) 7 Hare 89 and to R v. Kensington Income Tax Commissioners, ex p. de Polignac (Princess) [1917] 1 KB 486, 509 in which Warrington LJ held that the obligation was to:

“to make the fullest possible disclosure of all material facts within [the applicant’s] knowledge.”

Having examined the case law concerning the imposition of a duty of care in similar situations, the relevant statutory scheme and case law about the scheme, I now turn to apply those matters to the facts of this case. The Jains’ case is that Trent was negligent in deciding to apply to the magistrate under s 30 without notice to them, and in placing inaccurate material before the magistrate on that application. The judge held in their favour.

The basic position of the parties is as follows. Mr Colin McCaul QC, for Trent, submits that the judge erred in his approach. In his submission, the judge wrongly concluded that the extent of the breach of duty was a relevant consideration in deciding whether there was a duty of care in the first place. Mr McCaul submits that the judge should have considered to whom the duty was owed and he should have held that the duty was owed to the residents, and not the registered proprietor. Mr McCaul further submits that it is well-established that duties should only be held to exist either within existing categories or on an incremental basis. He submits that no similar duty has been found to exist.

For the Jains, Mr Augustus Ullstein QC submits that the judge was right to have regard to the severity of the breach of duty. The effect of the decision in Osman was that the court had to have regard to the breach in order to determine whether there was a duty of care. Mr Ullstein relies on the fact that the cancellation of the registration would have engaged the Jains’ right of property under art 1 of the first protocol to the Convention. This provides that “ …No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law” but that this "shall not… in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest…” He also relies on the principle that, in the absence of potent counter considerations, wrongs should be remedied.

In my judgment, Mr McCaul is right in saying that the judge was wrong to focus on the breach rather than on the question whether there was a duty of care. As I have explained above, the House of Lords in D v East Berkshire reiterated the importance of the duty of care. In those circumstances, the right starting point, in my judgment, is to ask whether there is any case analogous to the present one where the courts have considered whether a duty of care is owed. On this question, Mr McCaul submits this case falls within the group of cases dealing with the exercise by public bodies of statutory powers (see, in particular, D v East Berkshire) and also within the group of cases dealing with the duties owed as between persons who are involved in litigation (see, in particular, Customs & Excise Commissioners v Barclays Bank Plc). Mr Ullstein's submission is that this case stands on its own, and that the imposition of the duty of care to the Jains would not cause any conflict with the duty of Trent to the court in respect of an application made without notice.

Having considered the authorities cited to us and summarised above, I consider that this case falls within the broad category of cases in which public authorities have powers and duties to protect a class of persons, and, in the course of exercising those powers, cause loss to third parties. In reaching that conclusion, I have considered the statutory scheme. As this court said in Lyons, the clear object of the provisions with which we are concerned is to protect a group of vulnerable persons, namely the infirm residents of a nursing home. There is nothing to indicate that the purpose of the registration provisions is to protect the economic interests of registered persons. That the object of the relevant provisions is to protect the infirm residents is demonstrated by the provisions of s 30: that section provides a means of cancelling the registration of a registered person, without the basic requirement that he should be heard before that happens, where there is a serious risk of harm to the residents. That risk of harm takes precedence over the proprietor’s interest. So weighty are the interests of the residents that Parliament has in effect restricted the options available to the registered proprietor to obtain interim relief in respect of an application made without notice and granted. He has neither the right to have the order made without notice discharged nor the right to a rehearing with both parties present except if he appeals and then not until the appeal comes on for hearing. The 1984 Act does not give either the magistrate or the RHT the power to grant interim remedies. The only way in which a registered proprietor can obtain a stay on an interim basis is to apply for judicial review of the health authority's decision to make an application under s 30. That means, of course, that the registered proprietor would have to show that he had a case on public law principles, for example, that the decision of the health authority was perverse. That is a higher burden than he would have to meet on an appeal. But that appears to be a deliberate feature of this statutory scheme.

We are urged to hold that the lack of effective interim remedies violates art 6 of the Convention. In particular, Mr Ullstein submits that the registered proprietor would have to get an appeal on foot, and that that would take a considerable period of time, by when his business would have been closed down without a real prospect of revival if the appeal was successful. In my judgment, Mr Ullstein is clearly right in saying that there is a restriction on the right of access to a court where the application is permitted to be made without notice. But, in the circumstances contemplated by s 30, there might exist justification for withholding interim remedies for Convention purposes. The right of access to a court is not absolute: see Z v United Kingdom at [93]. Under Strasbourg jurisprudence, the right of access to a court can be restricted by the state provided that the very essence of the right is not impaired and that the restriction is for a legitimate object and proportionate. As to the first requirement, there is a right to have the order of the magistrate set aside on appeal, and in many cases this will be a valuable right because (in the absence of financial difficulties) the home can be reopened, or a business started elsewhere. As to the requirement for a legitimate object, we have not, in my judgment, had sufficient argument to be able to conclude that there is no legitimate object in the restriction on access to a court for the purpose of obtaining interim remedies in this case or that the restriction is not proportionate. But one can at least say that there is likely to be a good reason to prevent a party from obtaining interim remedies in a situation involving the closure of the home with infirm residents. In their interests, definitive steps have to be taken.

The same considerations apply to Mr Ullstein’s submission that the procedure in this case violated the Jains’ right not to be deprived of their property rights resulting from their registration under the 1984 Act. Although we have not been taken to the authorities on this point, I am prepared to proceed on the basis that Mr and Mrs Jain’s rights resulting from their registration under the 1984 act were "possessions" for the purposes of art 1.

More generally, Mr Ullstein relies on the lack of effective available remedies for the situation in which Mr and Mrs Jain found themselves. As I have pointed out earlier in this judgment, even when the appeal was resolved in their favour, the RHT could not award compensation in favour. When the order was made, there was no cross-undertaking in damages, and it is doubtful whether any such cross-undertaking could have been required by the magistrate. It is even in doubt whether the Jains ever had any right to apply under the NHS complaints procedure or to the Health Service Ombudsman. These considerations, on their own, suggest that it would be fair, just and reasonable to impose liability on Trent.

In my judgment, however, these considerations are outweighed by other potent considerations. First, as I have explained, as I see it there is a considered statutory scheme to exclude interim remedies, not altogether but in all cases other than the clearest. Secondly, when it comes to the payment of compensation, it has to be taken into account that Trent is a public body, financed out of public funds, and that the courts should be cautious before imposing an obligation to pay compensation which would cause a diversion of those funds from the objects for which Parliament intended them to be used. Thirdly, in a situation in which an application under s 30 is on the cards, there is likely to be a conflict between the objectives of the proprietor and the interests of the residents. The proprietor will almost certainly want to maintain his registration. If the home is closed, he will lose his source of income and, if he has borrowed money from banks, that money is liable to be called in and security enforced. Personal bankruptcy may follow. In addition, if there is a reasonable suspicion that the residents are being in some way abused -and I stress that that is not this case - there will be an obvious conflict of interest between the proprietor and the residents. The proprietor would inevitably wish to avoid any suggestion of an offence and any such suggestion would be deleterious to his professional reputation. The residents, on the other hand, will have an interest in not being moved from their home and in continuity of management of the home. They will also, however, have an interest in the home being run in a manner which is not harmful to them. Moreover, an application under s 30 is likely to be so damaging to the proprietor that he will wish in many cases to challenge the propriety of the application if means exist. In those circumstances, there will be a leakage of management time and financial resources from the health authority to the tasks of meeting these challenges, which are not the purposes for which Parliament set up a statutory scheme of regulation.

Mr Ullstein submits that Trent have not provided any evidence about the cost of meeting claims like that made by the Jains or on any other specific matter. That is correct, but the matters referred to in the last paragraph in my judgment do not require evidence. They are self-evident.

Mr Ullstein also submits that there is, in reality, no conflict of interest, because at the stage of an application to the court both the proprietor and Trent will want to see that Trent fully performs the duty of utmost good faith, which as explained above ([81] to [83]) arises on an application without notice. I am not persuaded by this argument. First, as explained above, when a s 30 application is in the offing, the proprietor will have his own concerns which will often conflict with those of the residents. The registration authority must have regard to the interests of the residents. To impose a further duty of care to the proprietor could well put it in an impossible position. For example, the registration authority may have suspicions about incompetence of the staff. If it owes a duty of care to the proprietor, it may have to investigate the matters giving rise to that suspicion further before it makes any application under s 30. This may put the well-being of residents at severe risk. Secondly, as regards disclosure to the court, the proprietor's interest is in seeing that matters favourable to him are fully disclosed. It is unrealistic to suppose that he has any concern about the disclosure of matters which are adverse to him. So the interest of the proprietor is not identical with that of the registration authority. In many circumstances, they may be consonant with each other but there could arise circumstances in which there is a conflict between the disclosure of matters favourable to the proprietor and the disclosure of matters adverse to him. Thirdly, it does not necessarily follow from the fact that in some respects there is an identity of interest that there must be a duty of care. I have referred above to the cases that show that the police and the Crown Prosecution Service have no duty of care to suspects or defendants. This is so even though the prosecutor owes a duty to the court with respect to the conduct of the prosecution.

I have examined in some detail the case of D v East Berkshire in which the House of Lords held that it was not fair, just and reasonable to impose a duty on health care professionals to the parent of a child, where, due to the incompetence of the professionals, false allegations of child abuse were made against the parent. In that case, the primary concern had to be the interests of the child, and there would be occasions when the interests of the parent and child diverge. Similarly, in this case, in my judgment it is not fair, just and reasonable to impose a duty of care on registration authorities when their primary duty under Part II of the 1984 Act is to residents in a nursing home, and the public interest, in ensuring the proper management of such homes. If they are subject to such a duty of care, it will on occasions result in a conflict with the interests of residents, and may make registration authorities more cautious about exercising their Draconian powers under s 30 than Parliament intended them to be, with the result that residents suffer. The proprietor has the protection that the emergency order can only be made by a judicial officer, namely a magistrate. Furthermore, if the registration authority were to act recklessly or in bad faith, then other remedies, such as misfeasance in public office, may lie.

If the imposition of a duty of care simply involved weighing up the rights and wrongs as between the Jains and Trent, there would be no difficulty about concluding this case in the Jains’ favour. But the imposition of a duty of care on a public authority involves a consideration of issues beyond those rights and wrongs. Mr McCaul submits that, if there is a duty to the registered proprietor, there must inevitably also be a duty to each of the residents. That submission, which is a “floodgates” argument (see [33] above), seems to me to miss the point. My reasons principally derive from the special features of the statutory scheme in this case and the conflict of duties that would arise from the imposition of a duty of care on the registration authority in favour of the registered proprietor. Accordingly, for the reasons given above, I consider that the judge was wrong to hold that it was fair, just and reasonable to impose a duty of care on Trent in favour of the Jains.

Mr Ullstein seeks to distinguish this authority on the basis that it was decided before the Convention was incorporated into English law, and before the decision of the House of Lords in Phelps. He also submits that it is distinguishable on its facts because there was no material nondisclosure to the court in that case.

I have left this issue until near the end under this issue because it is clear that the law on the duty of care has developed to a considerable extent in this field since the decision in Martine in 1993. Having set out the principal lines of those developments as far as relevant, it is in my judgment clear that the issue decided in Martine remains good law and is not superseded by the more detailed decisions of the House of Lords which have been handed down since Martine was decided.

However, Martine only deals with one part of the duty of care relied on in this case, namely the duty of care with respect to the preparation of the application under s 30. It does not deal with the separate question of whether a duty of care was owed in respect of the disclosure made to the magistrate and it will be recalled that that was the aspect of this case which the judge held put this case “in a class of its own”. I have considered that point above and, for the reasons there given, conclude that while Martine is not binding authority on this point, the same conclusion applies.

Mr McCaul submits that the judge erred in concluding that there was a relationship of proximity between Trent and the registered proprietor of Ash Lea Court. He submits that this is not a case where proximity can be found on the basis of the day to day relationship between Trent and the Jains. Mr Ullstein contends that the judge was right to hold that there was proximity. He does not contend that Trent assumed responsibility. But he submits that the requirement of proximity is plainly made out.

This issue does not now need to be decided. I bear in mind that proximity is an amorphous concept. Lord Bridge in Caparo referred to it as little more than a convenient label, and Lord Oliver referred to it as no more than a label, to describe the situation in which a duty of care arises. However, it is clearly a separate requirement and one that goes beyond foreseeability: the relationship of proximity is not established by showing that Trent could foresee that the Jains would suffer loss if a s 30 application was negligently made. It is also separate from the third requirement in Caparo that the imposition of a duty of care be fair, just and reasonable, and yet, as Lord Oliver explained in that case, to some extent it overlaps with that requirement.

The relationship between the Jains and Trent was closer than that between the Department of Transport and the purchasers of the fishing vessel in Reeman (above, [59]). There was a regularity of contact, and both parties would have known each other reasonably well. In those circumstances, the requirement of proximity is, in my judgment, fulfilled and the judge's conclusion on this was thus not in error.

In my judgment, this appeal should be allowed.

On 1^st October 1998 a number of ambulances with nurses descended upon the Ash Lea, the nursing home run by Mr and Mrs Jain, the claimants. The 33 residents, who were elderly (average age 80), infirm, and suffering from mental illness, were taken away and dispersed, some to hospitals and others to other nursing homes. At the very least the residents must have suffered great distress. As the Registered Homes Tribunal on the subsequent appeal observed: “It is recognised that such sudden moves may lead to premature death.”

The Jains were ruined. The distress of the residents and the ruin of the Jains were caused by Trent’s actions. The previous day it had successfully applied ex parte and deliberately without giving notice to the Jains to a magistrate for an order cancelling the registration of Ash Lea as a nursing home.

Under s.30 (headed “Urgent procedure for cancellation of registration etc.) of the Registered Homes Act 1984 then in force, an application for a cancellation order may be made:

“if it appears to the justice of the peace that there will be a serious risk to the life, health or well-being of the patients in the home unless the order is made.”

It was on solicitors’ advice that no notice of the application was given to the Jains. I find that depressing. Surely every solicitor ought to know, indeed to feel instinctively, that it is wrong to go to a court for an order adversely affecting another party without, unless there is good reason, telling that party of the application. It just is not fair. The usual exceptions to this golden rule are themselves self-evident: that there has not been time or it is not practicable to give notice, or that the very fact of giving notice would defeat the object of the exercise, as is the case with freezing and search orders. There was no good reason for not telling the Jains of the application.

We do not know whether the magistrate asked whether notice had been given. That is because, in yet another serious lapse, no-one seems to have taken a note of what actually transpired in the 25 minute hearing. A judge experienced in dealing with ex parte applications for draconian orders would probably (I hope) have asked why no notice had been given. But this sort of application is not the usual fare of a magistrate and no blame can be attached to him for making the order.

The evidence in support of the application was materially defective and in at least one respect highly misleading. I cannot think a magistrate would refuse to make a s.30 order if he was told, as the magistrate concerned was, immediately before the contention that if the order was not made there would be a serious risk to life and health:

“(vii)

There have been 12 deaths at Ashlea Court Nursing Home since February 1998. Seven of these deaths have been reported to the Police. Police investigations are continuing.”

The true position about this was set out by the Tribunal:

“Paragraph 8 seems a clear example of the inclusion of irrelevant information. Mrs Robertson [the head of Trent’s inspection unit who initiated the s.30 application] made it absolutely clear to us that the circumstances surrounding the deaths was not a reason for making the application. She denied that the paragraph had been included for its possible prejudicial effect and she pointed to the fact that the magistrate had before him the file note stating that the police did not suspect foul play in respect of the death on 17 September. She said that the paragraph had been included only as background information. If so, it gave a somewhat incomplete picture. It failed to relate the number of deaths to the number of residents and their frailty. If failed to indicate that deaths had been reported to the police because that is standard practice where a resident has not seen his or her doctor within the 13 days before death and the death is therefore regarded as “unexpected.” It failed to indicate that the police investigations had been concluded in all cases save the death on 17 September and the allegation of abuse to which we have already referred. It failed to indicate what the information was for background only and was not regarded as being of other significance.”

Rather kindly, to my mind, the Tribunal added:

“Whether the magistrate took any notice of the paragraph, given the complete lack of any indication as why the deaths might be significant, we do not know, but the paragraph should not have been in the statement in the form it was”.

A striking example of material non-disclosure is that the court was not told that the home had regular weekly visits by a doctor, that he had never expressed any fear about the residents’ safety and that Trent had not asked his opinion about the need for an immediate closure or what effect that might have on the residents, his patients.

I do not need to spell out all the manifest other respects in which Trent’s evidence was incomplete or misleading. It is all set out in the Tribunal’s decision and in the judgment of Sir Douglas Brown under appeal [2006] EWHC 3019 (QB). The case for immediate closure was so abysmal that the Tribunal, of its own motion, decided that Trent had, on its own evidence, no grounds for applying the order and did not require the Jains to call evidence. The Tribunal allowed the Jains’ appeal, expressing regret that it had no power to award costs. Unfortunately but entirely predictably, although the appeal was allowed, it was too late to save the Jains’ business, the bank foreclosed and they were made bankrupt.

The Jains claim recompense from Trent, suing in the tort of negligence. Free from any authority, I take the view that any civilised State, which had acted so unjustifiably and so damagingly, ought to recompense the injured party. I say “State” because formally an application under s.30 is made by the Secretary of State, though in practice his function was delegated to Trent.

Sir Douglas Brown was of the same opinion. He held that Trent’s decision to make the application was made in a “slip shod and rushed manner” and that it “bordered on the reckless”, though it fell short of “malfeasance or bad faith.” He held that there was a duty of care owed to the Jains and that the damage they suffered was caused by Trent’s negligence.

In sum Trent acted negligently. It also acted Wednesbury unreasonably in that no reasonable authority would have acted as it did in making the application at all, still less in the way that it did, though in the end this adds nothing to the case. Moreover, and I attach importance to this, Trent acted in clear breach of its duty to the court to make full and frank disclosure.

Two points are raised on this appeal. First Trent say as regulatory authority, it owed no duty of care. Secondly it says that the Jains’ damage was not caused by its negligence. Rather it flows from the Magistrate’s decision to cancel the registration.

I dispose of the latter argument first. It is to my mind preposterous. By negligently and in breach of its duty to the court causing the magistrate to make the order, Trent caused its obvious consequences. Things would have been different if a full and frank case had been put before the court and it had made the order nonetheless. If all the material is properly put before a magistrate who makes the decision on that material – then one can see how it can be said that the magistrate’s decision forms a distinct, operative and later cause of the loss of registration. But that is not this case. The order which Trent obtained by breach of its duty to the court cannot be regarded as a supervening cause of the loss. I agree with Arden LJ on this point.

I turn to real point, whether there is a duty of care owed at all. As I have said, instinctively I feel that one is indeed owed, not only to the patients but to the owners of the nursing home. I think there would be something amiss with the law if the position were otherwise. I turn to examine the position.

I start with the legislation. My Lady has set it all out so I can directly go to discuss it (likewise she has given the citations to the authorities so I do not repeat them). There is a marked difference between the “ordinary” power to cancel a registration and the urgent procedure under s.30. In the case of the ordinary power, the Secretary of State (actually the local authority by delegation) must give notice to the registered person, give that person the right to make representations and so on (see ss.28 and s.31). The “first instance” decision lies with the Secretary of State, an appeal lying to the Registered Homes Tribunal, s.34.

The s.30 urgent procedure is quite different. The order of cancellation is not made by the registration authority at all. All it can do is to invoke the judicial power conferred by the Act. It is the court which makes the cancellation order. An application “may” [I add, so not necessarily] be made ex parte” (s.30(2)). A s.30 order is (speaking of earlier, identical, legislation) “Draconian in the extreme” per Sir John Donaldson MR in Lyons v E. Sussex at p381.

I think this has profound implications for this case. It is trite that those who make ex parte applications to courts have a duty cast upon them to make full and frank disclosure. Parliament therefore must have contemplated that such disclosure should and would be made whenever an ex parte s.30 order is sought. So there is not only such a duty imposed by the nature of the procedure, but Parliament must be taken to have expected and intended that duty to be complied with by the Secretary of State or his authorised delegate when an ex parte application is made. That in substance means the section itself expects and so by implication imposes a duty to make full and frank disclosure.

Given such a duty, it is but a small step to say that the self-same duty is also owed to those affected by the order of cancellation obtained as a result of performance of that duty. One would not say that in the case of ordinary civil litigation – one side does not assume a duty of care towards its opponent, as my Lady has already pointed out. However the procedure here is not in any ordinary sense civil litigation: an application to a magistrate for cancellation of a licence is not a claim for a remedy for a wrong.

The whole point of the registration scheme is to protect patients from risk and enable the provision of safe nursing homes by the private sector. I see no reason to assume that Parliament, in indirectly imposing, or least harnessing, the duty of full and frank disclosure, intended that persons who would be directly adversely affected by a breach of the duty, should not be owed a duty of care. The existence of the duty is to protect them from just the sort of thing that happened here.

Indeed there is every reason why they should be owed such a duty. First it is clear that the interest of patients come first – but they will be adversely affected if there is a breach of duty causing their care home to be wrongly broken up. Second the interests of owners of nursing homes are largely but not completely aligned with those of patients: as happened here an order obtained on wrong, incomplete and misleading information is very likely adversely to affect both. Thirdly the public interest in the provision of nursing homes, particularly those who are willing and able to take patients who are not easy to look after, such as those catered for at Ash Lea, is liable to be affected if the owners of such homes have no recompense for the dreadful financial consequences of a slip shod unwarranted application to the court such as was made here.

I do not of course overlook the submission that if a duty of care is owed in the tort of negligence, it may be that some local authorities would be reluctant to use the s.30 procedure for fear of the financial consequences. I am not impressed by it for two reasons.

First an authority which simply puts the whole story before the court has nothing to fear if the court then makes the order. Trivial breaches of the duty are unlikely to matter provided the authority has been fair: the touchstone for breach is negligence, not a failure to be perfect.

Second, for the reason I have already given, I think that Parliament, having imposed the duty by inference, can hardly have intended to exclude a liability to those affected by its breach. The position is not the same as in East Berkshire, where, for instance, Lord Brown of Eaton-under-Heywood referred to the problems the proposed duty in that case would have on the minds of doctors (p.422B-D). Here the proposed duty to be full and frank is, or should be, in the minds of a local authority making an ex parte application.

In this analysis, I put on one side the question of whether there is any sanction for breach of the duty to the court as such. I do not think it matters. Sanction or not, the duty exists and it is a high and serious one. The only question is whether the law says it is also owed to patients and home owners by way of a duty of care for the purposes of the tort of negligence

Nor do I think it relevant that in ordinary civil litigation, where a cross-undertaking in damages is normally required before a claimant will be granted an interim injunction, no such cross-undertaking will normally be required where the claimant is a public authority seeking to impose what is prima facie the law, see F. Hoffmann-La Roche v Secretary of State [1975] AC 295. That case was not concerned with what the position might be in relation to an ex parte order improperly obtained, and I see no reason why the principle therein should be extended to permit public authorities to make slip-shod ex parte applications with impunity.

It is the existence of the undisputable duty of making full and frank disclosure to the court which goes with the power to apply ex parte which makes this case different from those cited to us. I turn to examine a couple of them. I have already mentioned East Berkshire. There is a mile of difference between the proposed duty of care in that case (to a parent by a doctor examining a child considering possible abuse by the parent) and that proposed here. There was no pre-existing duty such as that owed to the court here. Moreover the duty here is much more clear-cut than that of a diagnosing doctor. Also the interests of those who are to be protected are much more clearly aligned. Additionally a breach of the proposed duty involves not only negligence, but a breach of an existing duty to the court - indeed of a fundamental duty to act fairly.

Caparo in my view supports the proposed duty. It is common ground that it establishes the test for a proposed duty to be whether:

… the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other (per Lord Bridge at 618A)

The “fair just and reasonable” test is ultimately one of policy. I can see no policy reason for refusing to recognise a duty of care here. And every reason for doing so.

Caparo also indicates that the court should approach the question of the existence of a duty of care incrementally. Generally that means going from one case where a duty of care in negligence has been identified to an analogous case. But I see no reason why the court should not also consider in appropriate cases, as I think this one is, an incremental approach in a different way. Here, as I say, I do not think it a large step to hold that a duty of care in negligence to those directly affected (nursing home owner and residents) exists where Parliament has already brought into play the pre-existing duty to the court.

I do not think it necessary to refer in detail to any of the other House of Lords cases cited to us. None of them precludes the existence of a duty of care in this case. I agree with Sir Douglas Brown that the existence of the duty to make full disclosure on an ex parte application puts this case “in a class of its own”.

I turn to the unreported case of Martine, decided by this court in an unreserved judgment of 23rd February 1993. This court held that a claim in negligence in respect of the damage caused by a s.30 application should be struck out because there was no duty of care. The proposed duty of care was not the same as proposed in this case. It was “fully and properly to investigate the case and consider the material revealed upon such investigation to ascertain whether the operative condition was met.”

No question of any duty to the court was under consideration. No allegation of any breach of a duty to make full and fair disclosure on an ex parte application arose. So Martine is not determinative of this case. It was suggested that it is no longer good law in view of Phelps. I do not think that one can go as far as that – before you can say a case has been impliedly overruled you have to be sure that the ratio decidendi of the earlier decision cannot stand with that of the later, superior, court. The facts and reasoning in Phelps, although generally in favour of a rather more liberal attitude towards finding a duty of care in a public body, are not specific enough for that. So Martine remains binding on this court.

What I do say, however, is that I see no reason to extend Martine to hold that there is not only no duty of care owed properly to investigate, but also no duty of care owed not only to the court but to patients and home owners in presenting an ex parte application to a magistrate for immediate cancellation of a registration.

There is a much better policy justification for refusing to recognise a Martine duty of care than the duty propounded here. A need, or perceived need, for urgent action may conflict with a requirement to make full investigation because the latter may take time. Moreover one can foresee real difficulty about what amounts to a “full investigation” – how full is full? The uncertainty might cause a nervous authority to delay too much by way of investigating every nook and cranny in a case really calling for urgent action. The proposed duty of care in Martine was nowhere as clear cut as the duty to the court on an ex parte application. Nor was the proposed Martine duty one which already existed.

In the result I find that I differ from Arden LJ about the existence of a duty of care in this case. I would gladly dismiss this appeal.

Like Arden L.J., I have reached the conclusion that this appeal should be allowed. I agree with her judgment. In the light of the facts so vividly – yet accurately – summarised by Jacob L.J., my conclusion gives me no pleasure. It fails to satisfy the basic judicial instinct to see that justice is done in the case before the court. But the need for orderly development of the law of negligence serves justice on a wider scale and so should trump even the basic instinct. Otherwise the law becomes “a morass of single instances”: per Lord Bingham in Customs and Excise Commissioners v. Barclays Bank [2006] UKHL 28, [2007] 1 AC 181, at [8]. I do not accept that to allow this appeal is to expose a deficiency in the law of negligence. What it exposes is in my view a deficiency in s.30 Registered Homes Act 1984 or, since 1 April 2002, in s.20 Care Standards Act 2000.

The orderly development of the law of negligence dictates, among other things, adherence to a doctrine of binding precedent on the part of all courts other than the highest. Notwithstanding the movement of the law since 1993 towards the recognition in limited circumstances of a duty of care on the part of those discharging statutory functions – the highest tides to date being recorded in decisions of the House of Lords in 1999 (Barrett v. Enfield LBC [2001] 2 AC 550) and in 2000 (Phelps v. Hillingdon LBC [2001] 2 AC 619) – I agree with both my colleagues that Mr Ullstein fails to establish that the decision of this court in Martine v. S.E. Kent Health Authority, unreported, 25 February 1993, is inconsistent with later authority and must be taken to have been overruled. Sir Douglas Brown referred to the decision only in connection with the issue of causation, upon which the claimants rightly prevailed. Yet, with respect, it dictated his rejection of a substantial part of their case that the defendant owed a duty of care to them. Such of their complaints as relate to the defendant’s failure carefully to investigate the circumstances in their care home and carefully to analyse the results of its investigation prior to invocation of the procedure under s.30 of the Act of 1984 fall away into legal irrelevance: for the decision in the Martine case establishes that in such areas of its activities the defendant owes no duty of care to those in the position of the claimants.

Thus the alleged duty of care has to be cast around the other part of the claimants’ case, namely that which relates to the defendant’s presentation of its application to the magistrate. An application under the urgent procedure does not have to be made without notice: see s.30(2) of the Act of 1984 and, more clearly, s.20(2) of the Act of 2000. But, in that the application in the present case was made without notice, the defendant owed a duty to the court. In [81] to [83] above Arden L.J. has cited authorities which indicate its extent. Such an applicant’s primary duty is to make full and fair disclosure to the court of all such facts known to him as are relevant in law to his entitlement, or otherwise, to the relief which he seeks. In that the disclosure must be of facts relevant in law, rather than of those believed by him to be thus relevant, he has an ancillary duty to investigate the law in order to discern such facts as are relevant. Apparently it may even be – but this is surely more controversial – that the ancillary duty requires him to investigate the facts, with the result that his duty of full and fair disclosure would extend to relevant facts known to him not only actually but also constructively.

In Mr Ullstein’s own words, the duty of an applicant on a without notice application to make full and fair disclosure to the court is the “crux of [his] argument”; and it is his “primary case” that the suggested existence of an applicant’s duty of care to the absent defendant is but a small increment to his duty to make full and fair disclosure to the court.

But how solid a foundation for the former alleged duty is the latter duty? The views both of Jacob L.J. and of Sir Douglas Brown command my very particular respect; and they have given me protracted pause for thought. But I conclude that I cannot share them. A duty of disclosure to the court may well require steps to be taken which, were a duty of care to the absent defendant also to exist, might also thereby be required. But overlap in the steps which duties may require to be taken does not render such duties similar, still less identical or “self-same”. The duty of disclosure to the court on a without notice application is a public duty, breach of which is in principle visited with the court’s refusal to make – or, more likely, to continue – the relief sought. A duty of care to the absent defendant would be a private law duty, breach of which would be visited with liability for all losses foreseeably caused to him thereby. So, before we extrapolate from the former to the latter, we must have regard to the jurisprudence relative to the latter and consider whether the extrapolation would fall foul of any established principle there to be found.

In my view an extrapolated duty of care would fall directly foul of the general rule that “no duty is owed by a litigating party to its opponent”: per Lord Bingham, in the Barclays Bank case, cited above, at [18]. Although the principal rationales for the rule must surely be the encouragement of an uninhibited presentation to the court and the discouragement of potentially far-reaching satellite litigation, a subsidiary rationale is no doubt that a healthy system of litigation enables each party to fend for himself; and Mr Ullstein would rightly argue that such part of the rationale does not apply to the case of a respondent to a without notice application. Indeed obiter dicta on the part of Lord Wilberforce in Roy v. Prior [1971] AC 470, at p.480 D-E, would appear to afford his argument distinguished support. But that was a case of alleged malicious arrest. In my view it is impossible to regard the general absence of a duty of care between litigants as inapplicable to any such part of the litigation process as does not enable a party to fend for himself before the damage is done to him: see, for example, Business Computers International v. Registrar of Companies [1988] Ch 229, in which one company had caused another to be put into liquidation by carelessly serving the petition for its winding up at the wrong address but was held to have owed no duty of care to it in that regard.

Indeed the Barclays Bank case, cited above, repays closer study. It was the case, a fortiori than that of a party to the proceedings, in which the bank, served with a freezing order but not a party to the proceedings, was held to owe no duty of care to the party which had obtained it. Just as the court’s rules governing applications without notice impose a duty to the court upon those who make them, so the court’s freezing orders impose a duty to the court upon those who are notified of them. Lord Bingham observed, at [17], that the regime for making freezing orders “makes perfect sense on the assumption that the only duty owed by a notified party is to the court”. It was accepted – most clearly by Lord Mance, at [103] – that the bank’s suggested duty of care would not be inconsistent with its duty to the court but, rather, would complement it and perhaps reinforce performance of it. Nevertheless, by application of one or other of the various hallowed formulae suggested down the years as guides to the identification of a duty of care, each member of the House agreed that no duty of care lay upon the bank.

One such hallowed formula, apparently originating in the speech of Lord Morris of Borth-y-Gest in Home Office v. Dorset Yacht [1970] AC 1004 at p.1039C-D, inevitably finds a place in the forefront of Mr Ullstein’s submissions. It is that which requires consideration of whether it is “fair, just and reasonable” for a duty of care to be owed by A to B. But, in that regard, there is a valuable passage in the speech of Lord Bridge of Harwich in Caparo Industries v. Dickman [1990] 2 AC 605 at p.618. Arden L.J. has set it out at [32] above. Its upshot is that in Lord Bridge’s view the three words have no practical utility and are little more than convenient labels for attachment to circumstances which, by other routes, have already been identified as giving rise to a duty. I acknowledge that other distinguished jurists derive assistance from the words by investing them with a meaning which perhaps they do not ordinarily carry: for example “the test of fairness … may principally involve considerations of policy”, per Lord Clyde in the case of Phelps above, at p.671H. But my view is that, if they amounted to anything more than convenient labels, the words would be sung by a siren who would lure most of us on to the rocks where each case turns only on its own facts.

We move closer to the present case when we survey authorities on the liability in negligence of those who exercise statutory functions. In particular they send one message: it is to limit liability to the constituency whom exercise of the function is designed to protect. Thus the formulation of safety requirements by the Health and Safety Executive is designed to protect the public and so a formulation of such requirements, which, when not met, led to the enforced closure of a bungee jumping business, was not made pursuant to any duty of care to its owner: Harris v. Evans [1998] 1 WLR 1285. For the same reason the Civil Aviation Authority, in issuing a certificate of airworthiness, owed no duty of care to the aircraft’s owner when it crashed within weeks of issue: Philcox v. CAA, C.A., 25 May 1995, unreported. By contrast, a duty of care was owed in analogous circumstances to an injured passenger: Perrett v. Collins, C.A., [1998] 2 Lloyd’s Rep. 255. There Buxton L.J. added, at p.275:

“The importance of [the] fact that what is put at risk is the plaintiff’s body, and not just his goods, is … deeply embedded in the law of negligence.”

In the end, putting to one side the effect in this court of its decision in the case of Martine, cited above, I believe that the proper disposal of this appeal is dictated in particular by one authority, namely the decision of the House of Lords, albeit subject to dissent on the part of Lord Bingham, in D v. East Berkshire Community Health NHS Trust [2005] 2 AC 373, to which Arden L.J. has adverted in detail in [54] to [58] above. There was one reason in particular why, in the view of the majority, no duty of care was owed by three sets of health care professionals to three sets of parents against whom they had made unfounded allegations of physical or sexual abuse of their children. It was that, in investigating possible child abuse, the professionals owed a duty of care to the children and that the existence of an additional duty of care to the parents would cut across it: see the speeches of Lord Nicholls of Birkenhead at [85], of Lord Rodger of Earlsferry at [110] and of Lord Brown of Eaton-under-Heywood at [129]. Their views were hardly surprising: for in B v. Attorney General of New Zealand [2003] 4 All E.R. 833 the Privy Council, at [30], had recently reached an identical conclusion. So had the High Court of Australia in Sullivan v. Moody (2001) 207 CLR 562, in which, more generally, the court had observed, at [60], that:

“if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists.”

In my view there is a close parallel between, on the one hand, the functions of a health care professional when required to consider whether a child has been abused within his home and, in the absence of state intervention in his home circumstances, is therefore likely to suffer further significant harm and, on the other, those of a registration authority within the meaning of the Acts of 1984 and 2000 when required to consider whether, in the absence of an order for cancellation of its registration under the urgent procedure, there would be a serious risk to the life, health or well-being of a resident of a care home.

Mr Ullstein correctly argues that a duty of care owed to the residents of a care home need not conflict with a duty of care owed to its owners. It is, for example, no more in the interests of the residents than it is in those of the owners that registration of a home in which there is no serious risk to the life, health or well-being of the residents should be cancelled under the urgent procedure; and the existence of a duty of care owed not only to the residents but also to the owners may lessen the chance of so objectionable an eventuality. But the better example is founded upon the mischief for remedy of which the urgent procedure has been devised, namely the case in which a serious risk of that character exists. In that example the safety of the residents, in terms even of their very lives, runs diametrically counter to the economic interests of the owners; and (if I may adapt the expression by Lord Nicholls of his reasoning in the East Berkshire cases, cited above, at [86]) the seriousness of such risks to the residents demands that decisions of health professionals, made in good faith, as to whether the circumstances are fit for the urgent procedure and, if so, as to how to present them to the court should not be clouded by a conflicting duty to the owners.

Apart from a distinction unhelpful to Mr Ullstein, namely that, in contrast to his claim for purely economic loss, the claimants in the East Berkshire cases were alleging a duty not to cause them physical (in the sense of psychiatric) harm as a result of careless decision-making, I detect no material difference between those cases and the present.

In Lyons v. East Sussex C.C. (1987) 86 LGR 369 this court had an early occasion to survey both the “urgent” and the “ordinary” procedures for cancellation of registration contained in the Act of 1984. Sir John Donaldson M.R. observed, at p.381, that the urgent procedure was “Draconian in the extreme … because it would be very difficult to restore a home as a going concern once the registration had been cancelled and all the occupants removed”. His suggestion, foreshadowed in the judgment of Glidewell L.J., at p.379, was that, in order to guard against the likely reluctance of a magistrate to make an order for cancellation, a registration authority should normally couple invocation of the urgent procedure with simultaneous invocation of the ordinary procedure by giving notice to the owners of its proposal to cancel. The suggestion by the Master of the Rolls of a “double procedure” was certainly not followed in the present case; and there is no evidence before us as to whether it is customarily followed.

Twenty years on, the present case again dramatically illumines the risk of injustice inherent in the urgent procedure, now contained, with immaterial modifications, in s.20 of the Act of 2000. In my view there should be urgent debate as to whether, and if so, how Parliament might improve the procedure. My perspective, born only of attention to this one case, is far too narrow to entitle me to a voice in it of any authority. One possibility, however, might be to afford to an owner served with the magistrate’s order, if made without notice, a right to apply to him, say within 48 or even only 24 hours of service, to suspend the order, perhaps subject to conditions, until a decision to adopt a proposal for cancellation for the registration shall have taken effect pursuant to the ordinary procedure or until further order in the interim.

In the end, however, I am clear on one matter. It is not for us to extend the law of negligence well beyond its current boundaries in order to make running repairs to a deficient statutory scheme.