MS v Lincolnshire County Council

This is an appeal against an order for summary judgment in favour of the Defendant, Lincolnshire County Council ("the Council") given on 17 June 2010 by His Honour Judge Inglis in the Nottingham County Court under CPR Part 24. Save for one allegation relating to a sexual assault on the Claimant by an employee of the Council, the judge gave a summary judgment for the Council on the whole of the claim. In effect, therefore, he struck out the entire claim save for that one allegation which he allowed to proceed to trial. This appeal is brought with the permission of Slade J given on 26 November 2010.

The Claimant's claim is for damages for breach of a duty of care owed to him whilst he was in the Council's care between 1985 and 1999, that is from when he was about 4½ to his 18th birthday in March 1999. He is now in prison serving a life sentence for murder, having been convicted in December 2000. He maintains that he is innocent of that crime.

The judge also had before him an application by the Council objecting to amendments to the Re-amended Particulars of Claim. At a case management conference on 29 January 2010 the judge ordered the claimant to file re-amended Particulars of Claim by 4 pm on 20 February 2010. The Re-amended Particulars of Claim in the form before the judge at the case management conference included 39 paragraphs containing allegations of negligence. The judge made the order he did because he considered that the pleading was not in a form which would enable the case to be conveniently or economically tried. He said that some of the allegations were very general where specific failings needed to be identified precisely and that there were allegations of breach which did not add to the overall picture which ought to be abandoned. When he made the order he understood that the Claimant had in mind instructing Queen’s Counsel with considerable expertise in this area of the law and so he did not feel it necessary to spell out exactly what was required.

In response to that order the Claimant served a document entitled "Second Re-amended Particulars of Claim" which had plainly been settled by the Claimant himself and in which the allegations of breach had been expanded so that they covered some 206 paragraphs. The judge took the view that this document was wholly unsuitable as an agenda for the trial, even more so than the document that had preceded it. He remarked, rather colourfully, that if the case came on for trial "there would be something of a voyage of discovery to see what the case was actually about". The judge therefore refused the Claimant permission to allow the Particulars of Claim to be re-amended in this form and so he considered the application for summary judgment on the basis of the Re-amended Particulars of Claim in its previous form.

Slade J also considered an application for permission to appeal that part of the judge’s order, but she refused it. There can be no further appeal from that decision and so, like the judge, I must consider the Claimant's appeal on the basis of same the Re-amended Particulars of Claim that were considered by the judge.

The Claimant presented his appeal in person by means of a video link to the prison. It is a source of embarrassment that the video link arrangements in the Royal Courts of Justice did not work and it is only thanks to the assistance of the chambers of Mr Adam Weitzman, who appeared for the Council, that the hearing was able to go ahead. His chambers at No 7 Bedford Row kindly provided a room with a working video link and that is where the hearing took place at the London end.

For reasons that I will explain later in this judgment the Claimant argued his appeal himself. He did so clearly and concisely and I would like to pay tribute to the skill and economy with which he presented his case. I think that I should mention at this point that the Claimant has clearly used his time in prison very well: he has taken and passed both GCSEs and A-levels, and is now currently reading for a degree.

The Claimant obtained public funding for his claim and obtained expert reports from an expert in social work, Maria Ruegger, MA AASW, and a psychiatrist, Dr Benions, MD FRCPsych. The Council obtained reports from experts in the same disciplines. However, although reports, together with supplementary reports or letters, were prepared by the experts on both sides, no meetings of experts ever took place because the Claimant’s funding was withdrawn. Neither of his experts was prepared to continue to act as an expert unless instructed by a solicitor. The precise reason why the funding was withdrawn is not entirely clear, although the Claimant told me what he understood to be the reason, but this does not really matter because in my judgment the court should assume (if it has to assume anything) that, of the available reasons, that the one most favourable to the Claimant was the likely reason.

It was this state of affairs that prompted the Council to make the application for summary judgment. The Council argues, correctly, that the claim being made by the Claimant is largely made up of allegations of professional negligence against members of the Council’s social services department which, in the ordinary course of events, must be supported by independent expert evidence: see Barrett v Enfield London Borough Council [1999] 3 WLR 79, and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

This appeal is limited to a review of the decision of the County Court: see CPR Part 52.11. Rule 52.11(3) provides that the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. No material has been put before me that would tend to suggest that there had been any form of procedural or other irregularity in the court below, so the question on the appeal is whether the decision of the judge was wrong. Whilst an appeal court should be slow to interfere with an exercise of discretion by a judge, or with findings of fact where the judge below has heard oral evidence from witnesses, this is not a case of discretion but of judgment. Whether or not a case has any real prospect of success is a matter of judicial evaluation and if, as in this case, that evaluation is based on an assessment of documents and not oral evidence there is no reason why the appellate court cannot substitute its own evaluation for that of the judge if satisfied that the judge’s evaluation was wrong. In other words, if, having considered the material before the judge, the appellate court reaches a clear conclusion that differs from the conclusion reached by the judge it is entitled to find that the judge’s conclusion was wrong.

At the hearing before the judge, and before me, the Claimant contended that it would be unfair to prevent him from putting the reports of his experts before the court even though they would not be called to give evidence and there had been no meetings of experts which would have amounted, to use Mr Weitzman's words, to some form of peer review. To adopt the concept of peer review is perhaps to overstate the case, but nevertheless the point is a good one in principle. However, the Claimant made it clear that he did not object to the Council's experts giving evidence (even though his experts could not) so that he could have the opportunity to cross-examine them.

The judge decided in principle that the claim could not be allowed to proceed to trial on the basis of the Claimant's evidence being read. He said that the better view, and one which he would reach, is that the Claimant should not be allowed to produce his written expert evidence at all. He went on to say, at paragraph 34:

“If the experts had refused after the order of 29^th of January to cooperate with a joint statement, or with the directions of the court, the sanction would inevitably have been that the evidence would be excluded from the case in the absence of their cooperation and the process of review of the evidence. In the light of further evidence and material produced (sic), in my judgment, are essential steps to bringing to trial a case of this kind."

I do not entirely understand the last sentence in this passage, but in any event it does not seem quite right to me to compare a wilful refusal or dilatory failure by a party or its expert to comply with a direction of the court to a situation where the party is simply prevented by circumstances beyond his control from taking or complying with the necessary steps.

I have some concerns about this approach by the judge. Mr Weitzman submitted that since the judge was likely to be the trial judge and the case was listed to be heard during the following November, it was appropriate for the judge to make this ruling. In spite of this it seems to me that the judge should have approached the application for summary judgment on the basis of the ruling most favourable to the Claimant that a trial judge could reasonably make, as opposed to the ruling that this judge himself would be likely to make.

I can see no reason why the judge should not have allowed the Claimant to put in his reports on the basis that the weight to be attached to them, if any, would be a matter for the trial judge. I do not consider that he was entitled to assume that he would be the trial judge, and would therefore make any particular order, even though that was very likely to be the case. It was something that could not be regarded as a matter of certainty.

I would not be prepared to say, as the judge was, that the reports in themselves would have no real evidential value: if they contain material that is not effectively challenged, I do not see why a judge should not rely on that material. At a more practical level, if there was to be a trial and the other side decided to call its experts there would be nothing to stop a claimant from putting the conclusions of, or extracts from, his expert’s reports to the other side's experts. Of course, he would be bound by their answers (if credible) but it sometimes happens that when confronted by a report written by another expert of repute, an expert will not make relevant and helpful concessions. If this is to happen, and I do not see how it could be prevented, it would be far better that the whole report was available to the court rather than have a situation in which a claimant could "cherry pick" extracts from his reports and put them to the opposing experts out of context. At the very least, the opposing expert would want to have the full text of the report available to him when being asked such questions.

However, for reasons which will appear later in his judgment, I do not consider that I need say any more about this because the judge also considered the position on the basis that the reports of the Claimant’s experts were in evidence before the court.

The judge summarised the main conclusions of the expert psychiatrists. The Claimant’s expert, Dr Benians, said that the main cause of the Claimant’s dissocial personality disorder lay in the multiple changes of his carers, the abusive carers, and other abusive individuals to whom he was exposed. The Council's expert, Prof Maden, by contrast, concluded that the Claimant had a severe degree of psychopathy and that he did not believe that the Claimant's current state would be any different if the alleged failings had not happened.

In relation to the social work expert evidence, the judge set out the conclusions of Maria Ruegger, which were in these terms:

“. . . it is my opinion that the care provided to the claimant by the defendant fell below the standard of care expected of competent social workers at the material time in some respects. In others the service provided, whilst not ideal, fell within the range of decisions that competent social workers may have taken at the time. The complexity of the claimant's presentation makes it difficult to determine the extent to which the outcome would have significantly different had other arrangements being made for his care in the period after February 1995. In yet other aspects of the claim I have been unable to form any view on the basis of the information currently available.”

The judge noted that the Claimant had made very extensive comments on this report, and had produced a commentary on the social work records that ran to over 300 pages. Ms Ruegger was asked to reconsider her opinions in the light of that material. In a further document she produced a response in the following terms:

“In summary, my opinion is as follows. Although there are some areas in which the social work provided to [the Claimant] fell below the required standard as outlined in detail in my reports, it is my opinion he was already a very damaged child when he first came into the attention of Social Services. This is likely to have been the result of both genetic factors and early life experiences. While some of the care provided to him by the Defendant was not of the required standard, for example, the decision to allow him to return to his mother's care over Christmas 1987, these failings did not, in my view, significantly contribute to his psychological and emotional development, although he would have certainly been caused distress. The Claimant had complex needs and it is my view that on balance the defendant made reasonable efforts in accordance with Bolam standards, even if it did not always make the best decisions in the circumstances. Even if all aspects of the social work practices had been of a good standard, this would not in my view have made a significant difference to the outcome for the Claimant."

The Claimant made the point, which to some extent was a fair one, that matters of causation, such as whether or not a particular step if taken would have improved or aggravated the Claimant's condition, were for the court and not a matter of opinion for experts. However, experts are by definition experienced in their field and it may well be that there are some matters upon which they can properly express a view even though they may in truth be regarded as matters of causation. To take an obvious case, if a particular procedure was not followed an expert would be able to say that the outcome if the correct procedure had been followed would probably have been no different. In that case the expert is simply comparing what should have happened with what did happen and could quite properly say, if it was the case, that the end result would have been much the same.

One particular example in this case is that it is accepted on all sides that when the Claimant appeared to be under threat from a known paedophile there should have been a formal Case Conference. This is a particular investigative process from which a plan of action is the outcome. There was no such conference but Ms Ruegger has expressed the view that even if there had been one, there was very little that the Council could have done to prevent the Claimant from having his own way. That seems to me to be a conclusion on what is essentially a matter of causation that is a perfectly legitimate one for a properly qualified expert to reach.

On the basis that the Claimant's expert reports, in written form, would be before the court, together with the other evidence in the case, the judge said:

“If . . . the court ought to consider a trial on the basis that the claimant’s expert evidence, along with the other evidence in the case, would be adduced in written form, it is not, in my judgment, the result of the evidence referred to in table 1 of the claimant's submissions that the claimant's case could be credibly sustained. That list of items in table 1 gives nothing more than a fanciful and not a real chance of proving any substantial relevant breach of duty. The claimant identified in that table some 25 breaches which are supported almost entirely by Miss Ruegger’s evidence. I have referred in general to that evidence and to what she said in her response to the claimant's comments. She is not someone on whose written evidence, as it stands, there is any realistic prospect of the claimant proving breach of duty in any significant way. In addition to that, the individual assertions, it seems to me, are not really borne out by her evidence or the surrounding factual circumstances are inevitably going to qualify such opinions that she does put forward."

As the judge indicated, Table 1 summarised in the Claimant's own words the various parts of Miss Ruegger’s report and the report of Prof Payne, the Council’s social care expert, in which comments were made that the Claimant regarded as favourable to his case. The judge then went through, item by item, the Claimant's Table 1.

At this point it is convenient to say a little about the history.

Earlier in this judgment I referred to Ms Ruegger’s conclusion that the Council fell below the "standard of care expected of competent social workers at the material time in some respects". In order that nothing might be missed I have read Ms Ruegger’s report again since the hearing in order to consider each of the paragraphs in which she expresses the opinion that some or other actions by the Council fell below the required standard. I will identify the paragraphs in question so that the Claimant will know that I have considered them, but beyond that I do not propose to deal with them individually. The paragraphs are: 5.4, 5.6, 5.12, 5.18, 5.20, 5.23 (but this paragraph has to be read with paragraphs 5.25, 5.27, 5.28, 5.33, 5.44 and 5.50), 5.34, 5.39, 5.40, 5.44, 5.50, 5.59, 5.82, 5.96, 5.101 - 5.103, 5.112, 5.121, 5.125, 5.131 - 5.134 and 5.138.

The principal reason why the comments made in many of these paragraphs do not support the Claimant's claim is that they deal with matters of process, rather than of substance. However, I will deal briefly with the Claimant's early life and what Ms Ruegger had to say about it.

The Claimant was first removed from his natural parents has taken into care in November 1985. Ms Ruegger appears to accept that more might have been done for the Claimant before he was taken into care, but she concludes that the actions taken were not unreasonable. In November 1985 the Claimant was placed with foster carers, Mr and Mrs Cook. The Claimant has complained about their treatment of him, and Ms Ruegger accepts that it was not an ideal choice of placement, but did not consider that the decision to place the Claimant with the Cooks was unreasonable. In any event, the fact remains that the Claimant was only with the Cooks for three months and he was moved very promptly after he complained about ill treatment.

His next placement was with a Mr and Mrs Wilkinson. This was intended to be a short-term arrangement, again one which Ms Ruegger regarded as not ideal for a child of the Claimant's profile, but the Claimant remained with the Wilkinsons until February 1990. Whilst Ms Ruegger has noted that that during this period it seems that the Council did not carry out the six monthly visits to children who were placed with foster parents as was required, this did not result in any damage because it appears to be accepted now that the Claimant's placement with the Wilkinsons was, relatively speaking, a success. The problems came with the Wilkinsons’ abrupt decision in February 1990 to give up fostering children. That was no fault of the Council, but it may well have been in the event that led to so many difficulties during the next year or two. The contemporaneous reports suggest that the Claimant felt badly let down by the Wilkinsons and, as a result, his tendency to highly disruptive behaviour re-emerged.

The Claimant was then placed in residential care at an establishment called Danes House. Reports of his behaviour there show that he was aggressive and provocative: he had damaged property, set fires, begun to engage in self-mutilation and to display sexualised behaviour. His behaviour in school was extremely disruptive and challenging. The Claimant alleges that during his time at Danes House he was sexually abused by a member of staff. That is a claim that has been allowed to proceed. Nevertheless, this apart, Ms Ruegger’s conclusion based on the case notes was that on the whole the staff at Danes House managed the Claimant very well (paragraph 5.63).

At the end of October 1990 the Claimant was moved to another children's home, High Leas. Ms Ruegger concluded that the care provided for the Claimant at High Leas was "good and at least of the required standard" (paragraph 5.80). In February 1993 the Claimant was placed with new foster carers, Mr and Mrs Blamforth, and moved to Yarborough School, where at first he seems to have done relatively well and was identified as a bright student. The placement seems to have been initially fairly successful, but after about 15 months he Claimant refused to remain with the Blamforths any longer and they had also reached the conclusion that they could no longer deal with him. The Claimant was placed temporarily in another children's home. Subsequently he made a number of complaints against Mr and Mrs Blamforth, some of them, according to the Council, unfounded.

In July 1994 the Claimant moved back to Danes House and then, in September 1994, was moved to Ashleigh, a children's home. He was now 13. His behaviour at Ashleigh was very disruptive and in December 1994 a Secure Accommodation Order was obtained and he was moved to Kesteven House, where he remained for two months. At the end of that period the view was taken that there was no basis on which an extension of the order could properly be obtained, and so alternative arrangements had to be made. It was at this point that the question of a place at Beacon Lodge was under consideration, but this fell through for reasons that I discuss below. The Claimant was returned to Ashleigh, a move that almost everyone seems to have considered to have been inappropriate.

The Claimant has made numerous allegations against the Council in relation to his treatment during the 10 year period ending in December 1994 but, as I have attempted to demonstrate, they are not supported by Ms Ruegger, or at least not to the extent that would support a claim for breach of duty against the Council. I consider that the decision of the judge to refuse to permit the allegations of breach of duty in relation to this period was entirely justified.

One thing that emerges very clearly from all the reports and contemporaneous notes is that the Claimant was an exceptionally challenging, difficult, aggressive and manipulative child. It is, I regret, a feature of the Claimant’s life as a teenager that he was not prepared to take any responsibility for his own actions and was always looking to blame others for his problems. This theme still underpins many of the allegations in his claim. This is a pity: from the little contact I had with the Claimant during the hearing I formed the view that he has become an intelligent and articulate man.

The judge allowed only one head of claim to proceed, namely the allegation of sexual abuse by an employee of the Council whilst he was at Danes House. In relation to the rest of the claim, he gave judgment for the Council.

The Re-amended Particulars of Claim include two allegations that relate to the period after the Claimant turned 16 on 17 March 1997. The first relates to the failure to protect the Claimant from abuse at the hands of Mr George, which is alleged to have been a continuing failure from about October 1996 onwards.

This allegation and the reasons why in my view it has no realistic prospect of success in the light of the available evidence are discussed in the previous section of this judgment.

The only other specific allegation relating to this period is that pleaded at paragraph 12(d)(xi) of the Re-amended Particulars of Claim, where it is alleged that the Council inappropriately set up the Claimant in independent living when he was just 16 and not ready for it.

Ms Ruegger’s comment about this was that it is common practice: she says that over 50% of children in the care system are moved into independent accommodation by the time they reach 17. She points out that young people of this age are extremely difficult to contain in the care system if they do not want to be there. Her conclusion was that the actions of the Council did not fall outside “the range of likely actions that would have been taken by other competent social workers familiar with the claimant's circumstances".

During this period the Claimant asked more than once to be returned to Ashleigh, and he was allowed to do so. However, his behaviour was extremely volatile and made life very difficult for the staff. In January 1998 a 13 year old resident at Ashleigh alleged that the Claimant had sexually assaulted him and another child. The charges that followed were eventually dismissed, but the Claimant alleged that he did not receive proper support from the Council during this period. Between January 1998 and March 1999, when the Claimant reached the age of 18, the Council had great difficulty in finding him suitable accommodation because of his behaviour and he was moved six times. There are reports of him causing criminal damage, committing assault and being abusive to staff at Ashleigh - including threatening to set fire to it. Although he asked to be referred to the Drugs and Alcohol Team as a result of his substance misuse, he did not keep appointments offered.

Ms Ruegger has not expressed any view that supports the Claimant's allegations against the Council in respect of his care and treatment during this period. Accordingly, as things stand at present they have no realistic prospect of success.

in relation to the period up to March 1997, I have considered the allegations in Table 1, the majority of which are based on the period up to 1995, and the judge’s conclusions on them. In my view, largely for the reasons given in the previous section of this judgment, the judge’s conclusions in relation to all the items in Table 1, save possibly for three, cannot be described as wrong. My own conclusions would have been much the same. The three items on which the judge’s view is, perhaps, open to challenge are (using the references taken by the judge):

The first of these concerns of the threat posed by Alex George, the known paedophile. Of this the judge said "It remains a proper criticism of the Local Authority but there is no real case advanced on the basis of Ms Ruegger’s report for their having been a different outcome [had] better procedures been followed".

Ms Ruegger noted, at paragraphs 5.132 and 5.133, that competent social workers should have weighed the benefits of secure accommodation against the likely adverse consequences of such as strategy but that there was no evidence that the Council's social workers did this. She concluded also, like others, that there was insufficient focus upon the Claimant as a vulnerable young man and that undue emphasis was placed on pursuing criminal investigations into Mr George's activities. However, her final conclusion, at paragraph 5.135, was that it was not certain that if proper steps had been taken it would have prevented the Claimant from continuing to associate with Mr George or from the harm he may have sustained from that continued association. Ms Ruegger’s conclusion is challenged on the ground that this was a matter of causation and therefore a matter for the court, and not for the expert. For the reasons that I have already given, I do not consider that this is a good challenge on this particular point.

In addition, her conclusion was supported by the facts that on no less than five occasions during December 1996 the police and social services found the claimant at Mr George's flat and removed him, and as Miss Ruegger also noted, at paragraph 5.130, that the Claimant had persistently denied any wrongdoing on the part of Mr George and continued to associate with other adults who were known associates of Mr George.

It seems to me reasonable to conclude from this that, given the Claimant’s persistence in visiting Alex George, nothing short of placing him in secure accommodation would probably have prevented it. But, as Ms Ruegger noted, this is tantamount to putting a young person in detention without charge which, in her view, could bring about another set of problems that result in depriving the child of future support which may render him at even greater risk of harm in the future.

For all of these reasons, I consider that the judge’s conclusion on the first item was one that was properly open to him in the light of the evidence as a whole, and I do not consider that it can be said that it was wrong

The second possible area of concern is the placement at Beacon Lodge. The judge rejected the Claimant's case about this in the light of what Ms Ruegger had to say at paragraphs 5.103 and 5.106 of her report. At paragraph 5.103, Miss Ruegger noted that the Council's education department was not willing to pay the fees that were required for home tuition at Beacon Lodge and that the social services department was not prepared to pay for such an expensive resource from its own funds. At paragraph 5.106 Ms Ruegger refers to the Claimant's father actively supporting his son in refusing any options other than Ashleigh. But here the judge, like Ms Ruegger, appears to have overlooked the fact that the Council’s social worker case notes record that on 6 February 1995 the Claimant accepted the place that Beacon Lodge had offered three days earlier. I derive this from the document prepared by the Claimant entitled “Consolidated Summary of Records & Response”. Whether or not the relevant entry by the Claimant is correct I cannot tell, but it is the only evidence before the court on this issue and so it would not be appropriate for the court to reject it on an application for summary judgment.

In relation to the third item, the judge made the following comments:

This is closely linked to the allegation in relation to Beacon Lodge. It seems to me that on both these points there was insufficient material to support the giving of summary judgment. The failure to find a suitable placement for the Claimant following his release from secure accommodation and the consequent lack of education is a theme running through nearly all the reports that have been written about this stage of his life. As the judge rightly pointed out, this is an allegation that would require a detailed factual enquiry. That is not an enquiry that can be carried out on an application for summary judgment.

Accordingly, in relation to these allegations I consider that the judge was wrong to give summary judgment for the Council. However, in reaching this conclusion I must make it absolutely clear that I am not giving any indication that the Claimant’s case on this aspect may succeed at trial. My conclusion goes no further than saying that it cannot be dismissed as having no realistic prospect of success. I should point out also that this may turn on issues, not only of negligence in the Bolam sense, but also of the Council's policy in relation to the allocation of resources - as to which it is possible that any challenge may have to be based on unreasonableness in the Wednesbury sense.

But, as I have already indicated, I consider that the judge’s conclusions in relation to all the other items in Table 1 were justified, including his conclusion that there is no realistic prospect of the Claimant succeeding in relation to the allegation that the Council was in breach of its duty in failing to protect him from Alex George.

For the reasons that I have given, I conclude that the judge was entitled to give summary judgment as he did save for two particular allegations. Those are the failure to take up the placement at Beacon Lodge and the lack of education from 1995 up to his 16th birthday. These are the allegations at paragraphs 12(k)(x) and 12(n)(viii) of the Second Re-amended Particulars of Claim - although in relation to the latter, the dates should be from about April 1995 to about March 1997 (his 16^th birthday). These paragraph numbers are taken from the Second Re-amended Particulars of Claim because those were the references given in Table 1 and used by the judge (although he did not give permission for the amendments in that pleading). The allegations are also covered in general terms by the allegation at paragraph 12(d)(vi) of the Re-amended Particulars of Claim, so I consider that they were included as part of the claim that the judge was considering.

I therefore allow the appeal to the limited extent of varying paragraph 2 of the order dated 17 June 2010 as follows:

“Judgment under CPR Pt 24 for the Defendant on all issues except:

(1)

paragraph 9(d) of the Claimant’s Re-amended Particulars of Claim, namely "Whilst the Claimant was placed at Danes House Children's Home between July and October 1990, he was subjected to sexual abuse by a member of staff, "Don", who used to undress the Claimant and then rubbed his face over the Claimant's naked body, including his genitals" and

(2)

the failure to take up the placement at Beacon Lodge and/or the failure to arrange proper education and/or schooling for the Claimant during and after 1995 up to his 16th birthday.”

I make no order for costs.