Yaa Foriwaa Appiah & Anor v Leeds City Council & Anor

The Claimants are a married couple of Ghanaian origin. This claim concerns the detention of the First Claimant (“C1”), under the Mental Health Act 1983 (“the MHA 1983”). She was detained between 26 April 2019 and 23 August 2019, a period of about 4 months, during which time she was given treatment in the form of depot injections of anti-psychotic medications without her consent and against her will. She alleges that such detention and treatment was unlawful and constituted false imprisonment and various breaches of her rights under the European Convention of Human Rights. The Second Claimant (“C2”), C1’s husband, claims an infringement of his right to family life under Article 8 of the ECHR resulting from his having been deprived of his wife’s company for the period during which she was unlawfully detention. The Claimants are, and at all relevant times have been, litigants in person.

This claim is currently only against the Second Defendant (“D2”) the Health Trust responsible for C1’s detention. D2 was also the employer of the two consultant psychiatrists who made the recommendations for her detention under s.3 of MHA 1983. The claim against D1, Leeds City Council, was struck out by order of Mrs Justice Yip DBE dated 15 July 2022 on the basis that Cs should not have leave pursuant to s.139 to bring proceedings against D1 because Cs did not have an arguable claim that D1 had acted “in bad faith or without reasonable care” pursuant to s.139 MHA 1983 - see [2022] EWHC 2546 (KB) (“the Yip judgment”). D2 is represented by solicitors, Capsticks LLP, and counsel, Ms Imogen Goold, who appeared before me.

This case comes before me upon D2’s application to strike out the claim, alternatively for summary judgment in the D2’s favour.

I set out the following brief summary of facts taken from documents that have been put before me.

In 2017 C1 was convicted of assault of a police officer, harassment and criminal damage and received a custodial sentence. At some point during her detention at HMP New Hall she became subject to a deportation order under the Immigration Act 1971. Upon completion of her sentence, she was detained pending deportation. Prior to her conviction and subsequent imprisonment, she had been resident in the UK for some 20 years.

Whilst she was in New Hall prison staff reported that she had acted bizarrely and had delusional ideas. In October 2018, C1 was assessed by Dr Jonathan King, consultant psychiatrist, who recommended that she be transferred to a secure psychiatric unit under sections 47 and 48 of the MHA. Dr King subsequently became C1’s responsible clinician (RC). It is right to record immediately that Cs maintain that C1 was not at this time, nor at any subsequent time, suffering from any mental disorder. C1 was duly transferred to a psychiatric facility.

C1 sought judicial review of that decision. Permission was refused by order of the High Court dated 28 June 2018.

In April 2019, C1 received notice that the deportation order was going to be revoked. It appears from the Defence that the effective date of revocation was 26 April 2019. As a result, C1 was due to be released from detention on that date.

The Defence states that “An application was made by Mr Christopher Lee, Approved Mental Health Practitioner (“AMHP”), an employee of the First Defendant”, but does not record the date or nature of that application.

The Defence also states that on 24 April 2019, two medical practitioners, Dr King and Dr Andrew Cobb, assessed C1 and recommended that she be detained under s.3 of the MHA. It is therefore likely that the application was made on about 24 April 2019, but the chronology of events at the time the s.3 order was made is not clear from the statements of case. Both Dr King and Dr Cobb were employees of the Second Defendant.

The reports of Dr King and Dr Cobb were in the papers before me. They are handwritten documents and, especially in the case of Dr Cobb’s report, difficult to read. Dr King recommended admission to hospital for treatment, as being necessary for patient’s own health and protection of other persons. He noted C was suffering from paranoid delusions and had no insight into her condition and needed medication that could only be administered in hospital.

Dr Andrew Cobb recommended admission for the patient’s health. Unlike Dr King, he did not think that admission was necessary for protection of other persons. He was of the view that C1 was likely to be suffering from a “persistent [illegible] delusional disorder”.

Although both doctors assessed C1 as being mentally ill, neither doctor gave any firm diagnosis of C1’s condition.

It is stated in the Defence that the assessments of Dr Cobb and Dr King “were checked independently by another consultant psychiatrist” but the Defence does not identify that practitioner or when such check was made. That independent check is not in the papers before me.

In a later report that is dated 17 May 2019 but appears to have been written at various dates, including after 17 May 2019, Dr King wrote that, following the decision of the Home Office not to deport C1, “she could no longer be held under section 48 and I made recommendation [sic] for section 3 (as in my opinion Ms Appiah continues to suffer from a significant mental disorder for which she needs treatment but will not consent to treatment or consent to admission)”. In the summary of his proposed evidence served by D2 on or about 12 July 2024, based on information provided by Dr King two years previously, Dr King’s evidence is stated to be that he “instigated” the assessment of C1 under s.3 MHA, as he “felt that she was not suitable for discharge into the community”. It appears therefore that it was Dr King who was the prime mover in C1’s detention under the MHA 1983.

C2, C1’s nearest relative, did not consent to C1’s detention. An application was made to displace him as nearest relative, which was granted by HHJ Gosnell sitting at Leeds County Court on an interim basis on 26 April 2019. C2 sought a review of that decision. D2’s Defence states that that application was struck out as being totally without merit on 19 June 2019. The Claimants dispute that the application was so designated.

C1’s detention under s.3 began on 26 April 2019. She was held at the Newsam Centre of Seacroft Hospital. On 28 June 2019 the Claimants applied to the First Tier Tribunal (Mental Health) (“the MHRT”) for discharge of the detention order. On 29 July 2019 she was transferred to the Becklin Centre. During the period of her detention, C1 received multiple doses of anti-psychotic medication. In her brief witness statement for trial, C1 states that “they forced it on me in a degrading and inhuman manner (CCTV footage to show this)”.

On 23 August 2019 the MHRT heard the Claimants’ application. That hearing resulted in the immediate discharge of the s.3 order and release of C1.

The finding of the MHRT were emphatic and significant. Having heard from, amongst others, C1 and C2 and Dr King (who, as appears from his report to the MHRT, continued to recommend detention), the MHRT found that the case had not been made out that C1 “currently has a mental disorder whose nature or degree makes it appropriate for her to be liable to detention under s.3 MHA 1981”. This conclusion is as to C1’s mental state at the date of the hearing, and not as to any earlier date. As Yip J stated in her judgment on the liability of D1, “No finding that the detention to date had been unlawful was or could have been made by the tribunal” at [36].

This is plainly right. But it is possible to discern from the judgment of the MHRT at least some doubt on the part of the MHRT as to whether C1 had at any relevant time suffered from a mental disorder. The MHRT stated:

“9.

In the light of the available evidence, we are not at all convinced that the case for mental disorder has been satisfactorily made out. Between 2013 and 2017 the patient had three mental health assessment, none of which elicited findings of mental disorder. The grounds for the patient’s current detention are stated to be grandiosity and incongruous affect, yet we heard from the patient and the nearest relative plausible, and indeed persuasive, alternative explanation for what had been taken to be grandiose beliefs and ‘bizarre behaviour’. We are also acutely conscious of the severely stressful circumstances in which the patient found herself when in prison, facing deportation after residence in the UK for so many years. Since the patient’s deportation notice has been rescinded, she is reported to have shown signs of considerable improvement and to be less guarded, whilst, perhaps not surprisingly given the recent circumstances, remaining somewhat circumspect in the presence of medical and nursing staff. Whilst the medical evidence links that improvement to acceptance of anti-psychotic medication, it seems just as likely that the change in the patient’s circumstances has also played a significant part in her improvement. Indeed, aspects of her reportedly bizarre behaviour, lack of insight and guarded presentation are as consistent with an understandable reaction of the patient’s adverse circumstances as with mental disorder.

10.

We note that even now there is no settled diagnosis of the patient’s putative mental disorder and since admission to the Becklin Centre there have been no signs whatsoever of psychotic symptoms, to the extent that the RC does not rely on degree and is understandably uncertain about the chronicity of the patient’s past presentation and its future prognosis. We are also mindful of the patient’s calm assurance that she has never had a mental disorder and of the husband’s spirited reinforcement of that view.”

In the result, C1 was detained for some 4 months and received treatment against her will, she alleges in an aggressive manner. On any view, if such detention was unlawful – and I express no view on this issue beyond my decision on D2’s application, stated below – this is an extremely serious claim, involving the deprivation of liberty of the subject by and enforced medical treatment by the state.

The application comes before me in the following procedural context.

Cs wrote a letter of claim to Ds on 27 January 2020. The response to the letter of claim I have in the papers is dated 16 August 2020. There was therefore a 6-month delay before Ds responded to the letter of claim. The response stated, amongst other things, that the limitation period for claims under the HRA 1998 had run out.

Having by that time received no response to their letter of claim, Cs sent a claim form to be issued by the Court on or shortly before 24 April 2020 together with a fee remission certificate. However, the Court did not issue the claim form. On 15 September 2020 it wrote to Cs explaining that “due to the Coronavirus pandemic this office was unable to issue this claim”, and asked C to apply for a new fee remission certificate as the old one had expired. Cs did so, and the claim form was ultimately issued by the QBD on 23 September 2020.

The claim form was endorsed with claims for damages for: (1) Detention of C1 contrary to Art 5 and Art 8 of the HRA; (2) inhuman and degrading treatment of C1 contrary to Art 3; (3) false imprisonment of C1; (4) and procedural breaches of the MHA 1983. The amount claimed on the claim form was £1,510,000.

The current Particulars of Claim in the papers before me are headed “Claimants’ Amended Particulars of Claim”. I do not know when the Particulars were amended or what the original Particulars contained. The Amended Particulars appear to include claims not endorsed on the Claim Form, namely a claim for personal injury allegedly caused by the medication C1 received while detained, on the basis that she continues to suffer inability to sleep and chronic pain and suffering in her lower limbs, and a claim for damages for the alleged “stigma of mental health disorders” which “can limit her chances of employability and higher education especially where competition is intense”. D2 has taken no point on that. In the Amended Particulars Cs rely on the determination of the MHRT and state that the Tribunal “found that the 1^st claimant did not suffer from mental disorders”. The Particulars had attached various documents including a schedule of “compensatory damages and loss” and another document headed “Particulars of Schedule of Compensatory Damages and Loss”.

On 21 October 2021 Master Stevens ordered that the claim be transferred to a High Court Judge for permission to proceed against D1 pursuant to s.139 MHA. That section excludes for acts done in pursuance of the MHA 1983 unless such act was done in bad faith or without reasonable care, but expressly does not apply to health authorities such as D2. On 14 July 2022 Yip J heard Cs’ application for permission and refused it, and in consequence the claim against D1 was dismissed. Cs sought to appeal that refusal. On 11 August 2022 Lord Justice Stuart-Smith refused permission to appeal.

In the meantime, on 25 January 2022, D2 had served its Defence to the claim. It set out a short narrative of events leading up to C1’s detention and ultimate release and pleaded a full response to Cs’ various claims. In summary, its case was (and remains) that:

The Defence noted that Cs had not served a medical report about the alleged personal injuries suffered by C1.

The claim came back before Master Stevens for directions on 22 March 2024. Amongst other directions, the Master ordered that disclosure be given by 10 June 2024; witness statements be exchanged by 12 July 2024; the parties have permission to rely on expert psychiatric evidence “in respect of condition, prognosis and quantification of damages”, and, separately, “as to breach of duty and causation”, with Cs’ reports on each matter to be served by 20 September 2024 and D2’s reports by 10 January 2024. The Master ordered that there be a 3-day trial in the window 9 June and 26 September 2025. Subsequently the matter was set down for trial beginning 23 June 2025.

On or about 12 July 2024, Cs served 2 witness statements, one from each of them. These statements are only one-page long and do not appear to contain the totality of the evidence that Cs may wish to give as evidence in chief at trial. At the hearing before me, C2, speaking on his own and his wife’s behalf, told me a great deal about what he and his wife say happened over the relevant period. Most of what he told me was not included in their witness statements. These matters included the assertion that C1 had a bad relationship with Dr King and refused to speak to him, that Dr Cobb assessed her for a total of 20 minutes before writing his report on 24 April 2019, and that the depot injections were given roughly and forcefully by multiple people restraining her, whilst C1 was in a wheelchair. I would have expected C1’s statement to set out her account of her detention, first pending deportation and then pursuant to s.3, responding to the claims of mental illness and symptoms of mental illness made; setting out when she was assessed, by whom and how; her treatment and experiences whilst being detained under s.3; her account of the administration of medication that she alleges was degrading and inhuman; details of the alleged personal injury suffered; details of the effect on her and her life of the detention and treatment; and generally, all details of matters relied on in her Amended Particulars of Claim.

Cs’ witness evidence as served may be exiguous, but it does at least include the key points of Cs’ factual evidence; that (1) C1 has never been mentally ill; and (2) that the medication was forced on C1 in a “degrading and inhuman matter (CCTV shows this)". These points are the factual bases of the claim.

D2 did not serve any witness evidence at all. Instead, on 12 July 2024 it served an application to rely on a witness summary of Dr King under CPR 32.9(1). This was on the basis that Dr King had retired since the response to the letter of claim had been sent and was not responding to D2’s attempts to contact him. I am not aware of any application to issue a witness summons against Dr King. Dr King is not the only individual who could give relevant evidence. There was and is no witness statement from Dr Cobb, explaining his involvement in C1’s detention, or any statement from any member of the medical or nursing staff or management at Newsam or Beckham.

The date for the service of Cs’ expert evidence passed. Cs served no expert evidence. On 15 November 2014 D1 made an application to strike out Cs’ claim alternatively for summary judgment. The application was supported by a witness statement by Mr Andrew Walker, D1’s solicitor.

By an application notice dated 15 September 2024, but sealed on 20 January 2025, Cs applied to extend the date to serve an expert report to 31 January 2025. Their stated reason was that they had approached a named solicitors’ firm to take on their case but that would only be possible by mid-October 2024.

By application notice dated 6 January 2025 but sealed on 15 January 2025 Cs applied to stay the claim to allow the parties to engage in alternative dispute resolution (“ADR”).

These various applications came before me on 31 January 2025. I gave permission for D2 to rely on the witness summary of Dr King. I refused Cs’ application to stay the proceedings for ADR, rejecting their contention that it was mandatory for the parties to engage in ADR. However, I extended Cs’ time for service of expert evidence until 28 March 2025 in order that Cs could have some more time to seek legal representation. It seemed to me, and I told Cs at the hearing, that this was a difficult and complex claim and they should seek legal help, and I informed them about the organisation Advocate. I adjourned C2’s strike-out application pending the new deadline for expert evidence.

At that hearing Cs also applied orally for an order that D2 disclose CCTV footage of C1 receiving medical treatment. No application notice had been issued for an order of this kind. In response to this oral application I was shown by D2’s counsel correspondence in which it had informed Cs that the Trust did not have CCTV in place on any of the wards at either the Newsam Centre or the Becklin Centre, and that there is only “CCTV footage in place in the external grounds” at the centres (email Walker to C2, 12 July 2024). Since I was informed by D2 through counsel that no relevant document existed, I declined to make the disclosure order.

Following that hearing Cs applied for permission to appeal my orders refusing a stay of the proceedings and refusing an order for disclosure of CCTV evidence, and the order permitting D2 to rely on the witness summary of Dr King. That application to the Court of Appeal remains extant.

On 23 March 2025 Cs also served a document headed “Notice of non-reliance on expert reports”, and a further document headed “Amended Notice of non-reliance of expert reports”, the latter of which stated in summary that the claim was no longer one for clinical negligence and Cs did not wish to rely on expert evidence and that the claim would proceed “only with the Breach of Human Rights Act 1998 and European Convention on Human Rights relying on Articles 5,3 and 8 and false imprisonment under the MHA 1983, procedural breaches of hospital admissions, stigma of being associated with mental disorder, and mental incapacity under the MCA 2005”. Cs also served two Updated Schedules of Damages and Loss, received on 3 and 8 April 2025 respectively. The later in time is marked “Amended” but it is not immediately clear what the amendments are.

On 2 April 2025 Cs sent to the Court and to D2 an “Updated Claimants’ Amended Particulars of Claim”. No application has been made to serve that statement of case. I am not aware that D2 has been asked to consent to its service. D2’s position before me has been that I should not take it into account on this application. Since Cs have not argued the contrary, I have not done so. If Cs wish to rely on this document they must apply for and obtain the Court’s permission to serve it.

D2’s adjourned application came back before me on 9 May 2025.

Ms Goold for D2 presented D2’s case with restraint and with proper regard to the status of Cs as unrepresented parties. There were four grounds for the application:

D2 has not sought to strike out C2’s claim on any separate, freestanding grounds. I was not addressed on the position of C2 but it seems clear that since his claim is dependent on that of his wife, if C1’s claim were struck out, his claim would fall away.

The primary limitation period for claims against public authorities under the HRA is one year (s.7(5)(a) of the HRA 1998). Section7(5)(b) provides that the limitation may be “such longer period as the court or tribunal considers equitable having regard to all the circumstances”.

Under PD7A paragraph 6.1:

“Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.”

D2 submits that, since C1 was first detained on 26 April 2019, the last day of the limitation period was 25 April 2019. D2 accepts that the relevant date for the purposes of limitation is when the claim form was sent to the Court.

In their written submissions Cs state that they sent the claim form to the Court on 24 April 2020. This was not challenged by D2 before me. I have also seen a letter from the Court Service dated 15 September 2020 confirming that the Court “received a claim form to be issued on 24 April 2020”.

In such circumstances it is difficult to understand D2’s limitation point. The claim form was sent to the Court within time, but issued late by the Court due to the pandemic. Ms Goold submitted that a claimant must do all she reasonably can to set the wheels of justice in motion, and that Cs did not respond promptly to the Court’s letter of 15 September 2019 with a new fee remission certificate, resulting in the claim not being issued for until September 2020. But there is no evidence before me as to when Cs responded to the Court’s letter of 15 September 2020. And in any event, whether Cs sought a new fee remission certificate with sufficient promptness (and I state no view about that), in my judgment this is not relevant to the limitation defence; Cs were in time in “bringing” their claim for the purposes of limitation because they had sent, and I do not understand that it is challenged that they sent, all the relevant documents to the Court on 24 April 2020. What happened thereafter might be relevant to Cs’ conduct generally but not to limitation.

I also bear in mind that D2 failed to make any or any substantive response to Cs’ letter of claim for some 6 months, until after, on their case, the primary limitation period had passed. Cs were entitled to a much prompter response. It was not unreasonable of them to wait for a response until issuing proceedings. Cs were also not to blame for the Court’s delay in issuing the claim form. In the light of these matters, were it necessary to do so, I would extend the limitation period under s.7(5)(b) until the date the claim form was eventually issued by the Court.

Although I was not addressed on the issue, there also appears to me to be a potential issue as to whether the relevant deadline for limitation purposes is indeed 25 April 2020, as D2 contends, or at least whether that is the relevant date in respect of all C1’s causes of action. The limitation period for the claim in respect of the unlawful administration of medication may run from the time the medication was given. Also, if C1’s condition had improved during the period of her detention and she was nevertheless detained, the limitation period might be argued to run from the time her condition no longer warranted detention. The limitation period for false imprisonment is 6 years. But if limitation remains an issue at trial these matters may have to be explored then.

For all these reasons in my judgment it is very far from clear that Cs have no real prospect of succeeding in rebutting the limitation defence or that the claim should be struck out on limitation grounds. Indeed, in my judgment the opposite obtains: it is difficult to see how D2 has any real prospect of success on the limitation issue even taking the relevant deadline as 25 April 2020. At the very least, there is a triable issue on limitation.

As to D2’s second ground, D2 submitted that the Amended Particulars of Claim should be struck out pursuant to CPR 3.4(2), for two distinct reasons.

First, it is submitted that that statement of case fails to comply with the requirement of a concise statement of facts under CPR 16.4(1)(a).

Secondly, it is submitted that the Particulars set out no coherent statement as to what the alleged breaches of duty are or what the causative effect of the same was. It is not stated why C1’s detention was unlawful. This ground is tied in with D2’s fourth ground of striking out, namely Cs’ failure to serve expert evidence. It is submitted that expert evidence is reasonably necessary to establish liability and the failure to serve any such evidence prevents Cs from properly pleading their case as to the alleged breaches of duty and/or causation; and/or that such failure means that Cs have no real prospect of success at trial.

Cs submit that their Amended Particulars of Claim set out clearly the alleged breaches of duty together with a case on causation.

I note that D2 served a full response to the Amended Particulars of Claim and did not make any application under CPR 3.4 at the pleadings stage, or even at the time of the CMC, but only after the time for disclosure, witness statements and expert evidence (at least on the part of Cs) had passed. This is not fatal to D2’s application on this ground but does suggest the case they now raise is not self-evident.

In my judgment the Amended Particulars of Claim do comply with CPR 16.4. There is a concise statement of the facts relied on in paragraphs 2 to 11. The Amended Particulars are not prolix or overlong. Nor are they incoherent.

There is more to be said for D2’s second point, that the Amended Particulars fail to particularise the breaches of duty. It is right to say that Cs’ case appears to rest on the fact that the MHRT found that, in August 2019, C1 was not suffering from a mental disorder, or not one serious enough to justify detention. Cs appear to have understood the Tribunal’s determination as meaning that C1 never suffered from such a disorder. This is a misunderstanding of that determination. However, as I stated earlier, the MHRT’s determination does at least suggest some concern as to whether such a disorder was present at any date, such that C1’s assertion that she was not mentally ill cannot be said to be unreasonable or fanciful.

On the basis of those matters, Cs’ legal case is discernible: Cs rely on various specified procedural breaches of the MHA 1983, but also on the simple point that she was detained by D2 when she was not ill, and that was unlawful detention. That is a coherent claim, and one which D2 was able to plead to. D2 could have asked for further information of the claim but chose not to. I do not accept that the claim is so deficiently pleaded that D2 cannot respond properly to it. I do not accept that Cs’ later failure or decision not to serve expert evidence renders the Amended Particulars of Claim deficient. Particulars of Claim either comply with the Rules of Court or do not. A statement of case cannot cease to be a compliant document as a result of an (alleged) later failure to serve relevant evidence.

Since D2’s application is also for reverse summary judgment, I need to consider whether the pleaded claim has any real prospect of success. I have not been addressed by either side on the principles governing grant of summary judgment but I am familiar with the relevant principles, which were described as “clear and well-established” by Mr Justice Warby (as he then was) in Duchess of Sussex v Associated Newspapers [2021] EWHC 273 (Ch) and set out in paragraphs [11] to [16].

The submission that the claim has no real prospect of success is also closely tied to D2’s complaint that Cs have failed to serve any expect evidence. In D2’s first skeleton argument, drafted by Mr Richard Bantin, solicitor for D2 who appeared before me at the January hearing, D2 relies on the principle that in cases for medical negligence against professionals the need for expert evidence is firmly established. This, however, is not a medical negligence claim. I have not been addressed by either side as to various elements of the causes of action relied on by Cs and what Cs need to prove in order to succeed on each of them, but I do not understand it to be submitted by D2 that Cs can succeed only if they prove that one or both of Dr King or Dr Cobb was negligent.

It seems to me that it is at least possible that C1 could succeed in all or part of her claim, even without proving that one or more of the clinicians was negligent. If D2 had not properly followed the statutory procedures under the MHA 1983 before or during her detention, C1’s detention would be unlawful even if the clinicians had done their tasks with reasonable care. If C1 was held in detention for an overlong period, her detention might have become unlawful despite being initially lawful. If the drug treatment was administered in a disproportionately aggressive way, her claim under Article 3 might have merit. These are matters that need to be explored at trial. I cannot securely determine at this stage, and without having been addressed on the relevant principles of law governing each cause of action, that Cs cannot succeed on any part of their claims without expert psychiatric evidence.

Moreover, the difficulty as I see it for D2 is that it asks this Court to strike out or give summary judgment on Cs’ entire claims without having served any evidence itself. I should assume on this application that Cs are right when they assert in their evidence that, as a matter of fact, C1 was not suffering from any mental illness. I note that D2 has chosen not to serve any evidence on this issue, or any other, whether in support of its application or for trial. Currently there is therefore no evidence to contradict Cs’ case on that issue, or challenging C1’s evidence that medication was forced on her in a degrading and “inhuman” manner”, or any other aspect of Cs’ case.

I do not know why D2 has decided not to serve any witness evidence, except for the fact that Dr King is apparently currently unavailable. Other clinicians and relevant individuals might be available to give evidence.

As to the absence of any expert evidence from D2, during the hearing Ms Goold explained that D2 had served expert evidence on Cs that was password protected, but the password had not been provided pending Cs serving their own expert evidence. I asked Ms Goold if D2 would be prepared to disclose that evidence now, in order to assist the Court in forming a view on the merits. I was told that D2 was not prepared to do so because it would be unfair to D2, Cs having not served any expert evidence. Since Cs have indicated that they do not intend to rely on expert evidence, it seems to me that D2 should have served it own evidence. Be that as it may, D2 has chosen to make and pursue its application for summary judgment without any evidence supporting its application other than a witness statement from its solicitor, who has no first-hand knowledge of the facts of the claim or any medical expertise.

In these circumstances, where an individual who was, on her case, not sick but was nevertheless detained against her will, and no factual evidence has been served by the Trust as to the procedures followed or the circumstances of C1’s detention and continued detention or any other aspect of her complaint, and no expert evidence on any matter, I am not prepared to say that Cs have no real prospect of success.

Further, if I am wrong as to Cs’s prospects of success, in my judgment there is to be a good, indeed a compelling, reason for this case to go to trial. When a decision is made to deprive someone of their liberty and forcibly inject them with medication against their will, at the very least the responsible authority should explain and justify its decisions. It is not satisfactory that Dr King, whose decision it was to remove C1 to psychiatric ward and thereafter to instigate the s.3 process, is apparently currently unwilling to make a witness statement as to his actions and that D2 has not offered any other evidence either from Dr Cobb or the unnamed consultant psychiatrist who supported Dr King’s and Dr Cobb’s recommendations to detain, or anyone else.

As to abuse of process: in D2’s two skeleton arguments, the abuse of process ground for the strike-out application was rolled up with the ground that Cs have not disclosed grounds for bringing the claim. In Ms Goold’s oral submissions, it was also apparent that abuse of process was not a freestanding ground to strike out the claim. Ms Goold submitted that D2 accepted that it was legitimate for Cs to raise their concerns, but D2 had given Cs a large amount of leeway and Cs’ failure to get their case in order had gone on for so long that D2 could not properly prepare for trial. However, she also fairly acknowledged that there had been no intention on the part of Cs to be vexatious and she could not identify a particular species of abuse of process that this case fell into; she urged me to look at the matter in the round.

In my view there is no adequate basis or evidence upon which this Court could find that Cs have brought or are pursuing this claim for anything other than the proper, stated purpose; indeed D2 does not submit that they are. Therefore I will not strike out this claim as an abuse of process.

The breaches relied on are (a) Cs’ failure to serve expert evidence pursuant to paragraphs 7 and 8 of Master Stevens’ order dated 22 March 2024; and (b) failure to serve expert evidence by the extended deadline pursuant to paragraph 1 of my order dated 31 January 2025.

The relevant paragraphs of Master Stevens’ order grant the parties permission to serve expert evidence. They do not require either party to do so. The court’s direction that expert evidence “must be served” by a certain date means that if the party wishes to avail itself of the permission to serve such evidence, it must do so by the stated time.

The point is illustrated by D2’s failure to serve any witness statements by the deadline set out in paragraph 5 of Master Stevens’ order or at all (only applying for permission to rely on a witness summary). That is not a breach of the Master’s order. Similarly, the fact that Cs did not serve expert evidence by the relevant deadlines when they do not intend to rely on expert evidence cannot properly be seen as a breach of the order. I have already dealt with, and rejected, the submission that the failure to serve expert evidence means that the claim is hopeless.

But even if there had been breaches of directions as to the service of expert evidence by Cs, the usual sanction for breach of the deadline, if the court determined it was right to impose any sanction, would be that C is debarred from relying on expert evidence, and not that the action be struck out (there may also be costs consequences) . Cs have stated that they do not intend to rely on expert evidence, so the question whether they may do so does not currently arise. In the circumstances of this case, an order striking out the entire claim would be too severe a sanction for breach of a direction of this kind. I have in mind Cs’ rights under Article 6.

I therefore will not strike out the case for failure by Cs to serve expert liability evidence. Should Cs at a later date serve such evidence and state an intention to rely on it, it will be for another court to decide if that should be permitted given that by that stage such evidence will be very much out of time.

For the reasons above, I dismiss D2’s application to strike out the claim, alternatively for summary judgment in its favour.

Before leaving the issue of D2’s application, I should also record that, in response to D2’s application it was submitted by Cs that D2’s application to strike out was not properly made, or should not be heard, because it was not sealed. It is right that the copy of the application notice in the court bundle is not sealed. When I queried this with D2, I was told by Ms Goold that the application notice was served and CE-filed on the same day, 15 November 2024, and the fee was paid, and therefore D2 did everything it could to bring the application properly and gave proper notice of it. In those circumstances, where D2 had acted properly and Cs had notice of the application months before the hearing in January, it did not seem to me to be fruitful to inquire further at the hearing into whether the notice had in fact been sealed or if not why not. In any event, in the light of my decision as to D2’s application as set out in this judgment, this inquiry would be an academic exercise.

At the hearing Cs raised two other points ostensibly in response to D2’s application but which were really discrete to it.

First, Cs sought to revisit the issue of disclosure of CCTV evidence (see paragraph 38 above). At the hearings before me D2 confirmed through counsel that it did not have CCTV in any of its wards at either centre where C1 was detained. I note, however, that in the papers produced for the recent hearing, in a document on page 284 of the Supplementary Hearing Bundle, which is a record of a meeting on 12 August 2019 between Trust staff and Cs, it is noted that “Nicky said that as per CCTV footage there is no direct evidence of Yaa [C1] assaulting anyone”. Nicky is said to be the care coordinator. It is not clear what footage “Nicky” was referring to; this may be footage from a period of time when C1 was not detained under the MHA 1983. But, in the light of the information given the Court as to the non-existence of any CCTV, this does require explanation. D2’s solicitors should write to Cs confirming the position as to CCTV at the Becklin Centre and the Newsam Centre in the period 26 April to 23 August 2019 and explaining the reference to CCTV in the documents.

Secondly, Cs submitted that D2 had breached the order of Master Stevens because the Master had ordered (at paragraph 2 of the Order dated 22 March 2024) that any party not engaging in any proposed ADR was to serve a witness statement giving reasons within 21 days of receipt of that proposal. Cs informed me that they had proposed mediation to D2 in March 2024 and D2 had refused, but had not provided a witness statement.

D2 responded on the point in a written submission sent to me after the hearing. It stated that it had not refused to engage and indeed had informed Cs that it was prepared to do so, but that they needed sight of Cs’ expert evidence in order for ADR to be effective. D2 stressed that they were willing to engage in ADR.

Cs have produced to me the correspondence on the issue between 7 May and 4 June 2024. On 7 May 2024 Cs wrote to D2’s solicitors, Capsticks, proposing ADR and stating that if D2 did not intend to engage in ADR, it should serve a witness statement giving reasons.

On 3 June 2024 Capsticks responded stating that they were prepared to engage in ADR, and asked what form of ADR Cs were suggesting. They also stated that their view was that “it would appear most appropriate to consider the expert evidence in support of your claim before conducting some form of dispute resolution”.

In response, on 4 June Cs clarified that the form of ADR they proposed was mediation. There appears to have been no further correspondence on the issue.

In the light of the above, in my judgment Cs are correct when they submit that D2 have not complied with the learned Master’s order. The order is clear that any party not engaging in the ADR proposed by the other side within 21 days of the proposal must provide a witness statement. It does not state that any party refusing to engage in ADR must provide a witness statement. In this case, even after Cs specified that their proposed ADR method was mediation, D2 did not begin to engage in ADR within 21 days of Cs’ proposal; they expressly stated that their view was that expert evidence should be served first. In compliance with the Master’s order, a witness statement should have been served setting out D2’s reasons for not engaging with mediation within 21 days of 4 June 2024. The fact that D2 did not expressly refuse to engage in ADR is nothing to the point.

I will thereby direct that D2 now comply with paragraph 2 of Master Stevens’ order (albeit belatedly) and serve a witness statement giving reasons it did not engage with mediation following receipt of Cs’ proposal. I would also urge the parties to review paragraph 2 of the Master’s order (including the requirement to consider settling this litigation by any means of ADR at all stages), and to ensure that they comply with it.

At the hearing I informed the parties that, in the light of the fact that I was reserving judgment and did not know when judgment would be handed down, I was minded to vacate the trial date. It appears to me that neither side is ready for trial; D2 has served no evidence; Cs have an extant appeal. It seems to me that some extra time to prepare for trial would assist both sides, and having the claim better prepared for trial served the overriding objective.

In particular, it appears to me that both sides need to review their positions on witness evidence. Cs’ witness evidence does not cover all the factual ground that was raised before me at the January and May hearings. Their witness statements should set out fully their accounts of what took place. D2 has served no witness evidence at all (other than the summary of Dr King’s evidence). It may be that they would wish to review this position following this judgment.

Further to those points, I invite the parties to try to agree an order consequential to this judgment, to include directions as to the matters set out above, and any other direction necessary to ensure that this matter may now proceed to trial.