Menon & Ors v Herefordshire Council

There are before the court two applications made in the context of a claim for misfeasance in public office arising out of actions taken by the employees of the Defendant, Herefordshire Council, in connection with the running of Rosedale Residential Home (“Rosedale”), in Ross-on-Wye in Herefordshire.

The first is an application for summary judgment on two issues. The first issue concerns the lawfulness of certain actions taken by employees of the Council at Rosedale on 11 to 13 May 2010 when residents ceased to reside at Rosedale and moved to other residential accommodation. The second issue concerns the lawfulness of alleged decisions taken by the Defendant in 2009 or 2010 not to make arrangements for potential residents to be accommodated at Rosedale because of the Defendant’s concerns about the quality of care given to existing residents.

The second application is for an order, firstly, requiring the Defendant to disclose documents containing legal advice about the legality of the actions taken by the Defendant at Rosedale on 11 to 13 May 2010 and secondly, permitting the Claimants to use and rely upon documents containing legal advice about those matters which are already in their possession.

The First and Second Claimants were at the material time the shareholders in the Third Claimant, Autumn Days Care Ltd. The Third Claimant operated a business of providing residential care homes, one of which was Rosedale. The Defendant is the local social services authority for Herefordshire. The Defendant had made arrangements for accommodation to be provided at Rosedale for certain persons to whom the Defendant owed a statutory duty to provide residential accommodation. It is likely that one or more other local social services authority had made arrangements for residential accommodation to be provided there for persons to whom they owed similar duties. It is likely that other persons resident in Rosedale at the material time were persons who had made their own contractual arrangements enabling them to reside at Rosedale.

Any person who carries on or manages a care home without being registered commits a criminal offence: see section 11 of the Care Standards Act 2000 (“the 2000 Act”). The relevant registrations in relation to Rosedale were in place at the material time. The registration authority was the Care Quality Commission (“the Commission”).

Put neutrally, employees of the Defendant had concerns about the quality of the care being provided at Rosedale to some of the residents there. For present purposes, it is sufficient to note that it is alleged that by about 26 January 2010, the Defendant had stopped making arrangements to place those needing residential accommodation at Rosedale and did not inform the Claimants of this fact.

The police investigated allegations relating to certain residents. On 11 May 2010, the Second Claimant was arrested. Employees of the Defendant attended Rosedale. The residents ceased to reside at Rosedale and took up residence in other care homes over a period between about 11 and 13 May 2010. The Claimants’ assertion of what happened is set out at paragraph 69 of their re-amended particulars of claim in the following terms:

“69.

Mr and Mrs Menon’s arrests on 11 May 2010 were planned, for the reasons stated in the email from DS Wells set out in paragraph 61 above. On 11 May 2010, officers of the Defendant, who included Ms Noble, Mr Carver, and Ms Law, went to Rosedale before Mrs Menon was arrested and spent that day telling residents or their relatives and/or those who had power of attorney in relation to the residents that the residents had to be placed at a home other than Rosedale. The employees and/or other agents of the Defendant who were present took charge of the staff and residents during that day, and took over the conduct of the home on that day, by taking away all authority from the members of staff who were present. The social services team members neither wanted to enter into any discussions with, nor hear from the relatives of residents and persons with powers of attorney in relation to the residents. The sole focus of those team members’ actions was the forced removal of the residents of Rosedale from Rosedale. Mr Gaurav Menon, who attended at Rosedale when he was told by an employee of Autumn Days of the situation, was told by one or more of the Defendant’s employees who were present that he should not talk with the families of residents, or discuss the situation with them, or he would be arrested for “interference”. That which is said in the rest of this paragraph about particular matters is merely by way of example and without limitation. Ms Noble said to Mrs Sylvia Bennett, who had power of attorney in relation to Mrs Dilys Luckett, who was at that time a resident at Rosedale: “We are closing the home and you will have to remove Dilys.” Mr Carver said to at least Mrs Bennett that he was “acting on instructions to remove residents”. Mrs Bennett was given a choice of two care homes for Mrs Luckett to move to, and told by the social services team member who gave her that choice that if she did not exercise it then Mrs Luckett would be moved without Mrs Bennett’s consent.”

The Claimants subsequently brought a claim alleging misfeasance in a public office on the part of employees for whom the Defendant was vicariously liable. The elements of the tort are set out in Three Rivers District Council v and others v Governor of the Bank of England (No. 3) [2003] 2 A.C. 1 at pages 191 to 196. For present purposes, and without seeking to define the requirements of the tort, the elements of the tort include the following. First, there must be an exercise of power by a public officer. Secondly, that exercise of power must be unlawful. Thirdly, the public officer must either have intended to injure a person or persons (referred to in the case law as targeted malice) or, alternatively, the public officer must have done the act knowing that he has no power to do so and knowing that the act will probably injure the Claimant. That alternative mental state may be established if the public officer is subjectively reckless as to whether the act is unlawful or not (sometimes described as wilfully disregarding the risk that the act might be unlawful). Fourthly, the actions complained of must have caused loss.

What the Claimants allege is that the actions of the Defendant (1) in not making arrangements to place persons in need of care and attention at Rosedale or (2) in removing, or causing the removal, of the residents at Rosedale are unlawful acts. At paragraph 85 of the amended particulars of claim, the Claimants say:

“85.

The employees and/or agents of the Defendant who are identified in the following paragraphs below, (in the case of the employees) for whose tortious acts the Defendant is vicariously liable, acted at least in wilful disregard of the risk of the illegality of the following acts, or alternatively without an honest belief in the legality of those acts, in the knowledge that those acts would cause loss to the Claimants:

85.1

deliberately refusing to act in accordance with the expressed preferences of the potential residents at Rosedale,

85.2

deliberately failing to make known to potential residents of Rosedale and/or their relatives and/or the persons who had power of attorney in relation to those potential residents, that Rosedale had places available for those potential residents; and

85.3

causing the residents of Rosedale to be moved out of Rosedale on 11-13 May 2010.”

The actions in paragraph 85.1 and 85.2 are alleged to be unlawful because of a conflict with the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 (“the Directions”). The actions relating to the circumstances in which residents ceased to reside at Rosedale are said to be unlawful because:

“87.

Those acts to which reference is made in paragraph 85.3 above were unlawful because they were:

87.1

simply ultra vires the Defendant, in that the Defendant had no power to remove or cause to be removed residents from Rosedale, in the absence of a determination by the FTT (which was not stayed) that the registration of the registered proprietor of Rosedale, namely Autumn Days, should be cancelled; and/or

87.2

for an improper purpose, namely to (1) close Rosedale and/or (2) put Autumn Days out of business as a care home operator and/or (3) cause loss to Mr and Mrs Menon.”

Furthermore, at paragraph 89 the Claimants allege:

“89.

Further or alternatively, the acts of the Defendant’s employees and/or agents referred to in paragraph 85.3 above were the product of targeted malice towards Mr and Mrs Menon on the part of one or more, or all, of the following employees and/or agents of the Defendant….”

and specific individuals are named.

The Defendant denies liability. In their amended defence, they assert, amongst other things, that they did not cause any resident to be removed from Rosedale. Rather, the Defendant says that their employees attended the premises at Rosedale, provided information to the residents about what had happened and the residents decided to leave Rosedale and take up residence in other care homes. That appears from paragraph 108 of the amended defence which is in the following terms:

“108.

As to paragraph 69:

“(1)

The first sentence is denied, save that it is admitted that the Council were made aware that the police planned to arrest Mr and Mrs Menon on 11 May 2010, and did in fact arrest Mrs Menon at that date. As far as the Council is aware, the arrests of Mr and Mrs Menon took place in order to facilitate the investigation by the police of suspected offences of, amongst others, neglect by Mr and Mrs Menon of residents of Rosedale.

“(2)

The second sentence is denied. The Council assessed that the needs of the residents of Rosedale would not be met in the event of the Menon’s arrests and that there was an immediate safeguarding issue. On 11 May 2010, the Council’s employees attended Rosedale and there provided information to residents, and/or their families, namely that:

(a)

Mrs Menon had been arrested and was bailed not to return to Rosedale;

(b)

Mr Menon was signed off sick;

(c)

Rosedale was thus left without a manager; and

(d)

Rosedale was rated by the CQC as “zero”;

(e)

The culmination of risk markers referred to in paragraph 26 above and the Schedule of Failings and Risk Markers at Schedule 1.

“This information was provided in order to enable residents to be aware of the potential risks they faced if they were to remain at Rosedale. No resident chose to stay at Rosedale. In at least one instance, a resident lacked the mental capacity to decide whether to move and the Council, deciding it was in the best interests of that resident to leave Rosedale, arranged for that person to move. In other cases, the residents chose to leave Rosedale and the Council then assisted them with the practicalities of moving. All such acts and decisions by the Council and its employees were done in good faith and for the purpose of safeguarding the immediate health and welfare of the residents of Rosedale.

“Save as aforesaid, paragraph 69 is not admitted.”

There is, therefore, a stark dispute of fact as to what happened at Rosedale on 11 May 2010. The Defendants further deny that what their employees did was unlawful but, rather, involved the exercise of express, or implied, statutory powers in the social services field.

For the purposes of dealing with the application for summary judgment, the most immediately relevant provisions are the following. First, section 21 of the National Assistance Act 1948 (“the 1948 Act”) provides, so far as material, that:

“Duty of local authorities to provide accommodation.

“(1)

Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing —

(a)

residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them;

…..

“(2)

In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions.”

Paragraph 2 and 3 of the Directions provide:

“2.

Where a local authority have assessed a person under section 47 of the National Health Service and Community Care Act 1990 (assessment) and have decided that accommodation should be provided pursuant to section 21 of the National Assistance Act 1948 (provision of residential accommodation), the local authority shall, subject to paragraph 3 of these Directions, make arrangements for accommodation pursuant to section 21 for that person at the place of his choice within the United Kingdom (in these Directions called “preferred accommodation”) if he has indicated that he wishes to be accommodated in preferred accommodation.

“3.

Subject to paragraph 4 of these Directions the local authority shall only be required to make or continue to make arrangements for a person to be accommodated in his preferred accommodation if –

(a)

the preferred accommodation appears to be the authority to be suitable in relation to his needs as assessed by them;

(b)

the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;

(c)

the preferred accommodation is available;

(d)

the persons in charge of the preferred accommodation provide it subject to the authority’s usual terms and conditions, having regard to the nature of the accommodation, for providing accommodation for such a person under Part III of the National Assistance Act 1948.”

Other statutory provisions may, ultimately, prove relevant including section 47 of the National Health Service and Community Care Act 1990 which provides for local authorities to assess the needs of a person where he or she may be in need of community care services.

The Claimants are seeking summary judgment on two issues only which form part of the claim. The first concerns the lawfulness of what occurred at Rosedale on 11 to 13 May 2010. The second concerns the lawfulness of any action on the part of the Defendant not to make arrangements for potential residents to be accommodated at Rosedale because of the Defendant’s concerns abut the quality of care given to existing residents. The order sought is in the following terms:

“(1)

The Defendant had no power to do that which it (acting through its employees and/or other agents) did in relation to the residents of Rosedale Retirement Home, Ross on Wye (“Rosedale”) on 11-13 May 2010, as described in paragraph 69 of the Re-Amended Particulars of Claim or (if different) paragraph 108(2) of the Amended Defence.

“(2)

the Defendant had no power [covertly] at any material time (i.e. at any time to which the Re-Amended Particulars of Claim relate) to refuse to give effect to the choice of potential residents to be accommodated at Rosedale because the Defendant’s officers thought that the quality of the care given to existing residents was not satisfactory.”

CPR 24.2 provides that:

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if–

(a)

it considers that–

(i)

that claimant has no real prospect of succeeding on the claim or issue; or

(ii)

that defendant has no real prospect of successfully defending the claim or issue; and

(b)

there is no other compelling reason why the case or issue should be disposed of at a trial.”

The relevant principles governing applications for summary judgment are well-established. For present purposes, it is sufficient to bear in mind two passages from the decision of the House of Lords in Three Rivers District Council v Governors of the Bank of England (No 3) [2003] 2 A.C.1 First, at paragraphs 94 and 95, Lord Hope observed:

“94 For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is—what is to be the scope of that inquiry?

“95 I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. “

Secondly, at paragraph 158, Lord Hobhouse of Woodborough observed that:

“The important words are "no real prospect of succeeding". It requires the judge to undertake an exercise of judgment. He must decide whether to exercise the power to decide the case without a trial and give a summary judgment. It is a "discretionary" power, i e one where the choice whether to exercise the power lies within the jurisdiction of the judge. Secondly, he must carry out the necessary exercise of assessing the prospects of success of the relevant party. If he concludes that there is "no real prospect", he may decide the case accordingly

…..

“The criterion which the judge has to apply under Part 24 is not one of probability; it is absence of reality.”

Further the relevant principles applicable, in cases such as the present where it is sought to obtain summary judgment on an issue, or issues, rather than the entirety of the claim, are set out at paragraphs 27 and 28 of Wragg and others v Partco Group Ltd. and another [2002] Lloyd’s Rep. 343:

“27.

It seems to me that the following principles are well established, at least as articulated in relation to summary disposal under Part 24 of the CPR. (1) The purpose of resolving issues on a summary basis and at an early stage is to save time and costs and courts are encouraged to consider an issue or issues at an early stage which will either resolve or help to resolve the litigation as an important aspect of active case management: see Kent -v- Griffiths [2001] QB 36 at 51B–C. This is particularly so where a decision will put an end to an action. (2) In deciding whether to exercise powers of summary disposal, the court must have regard to the overriding objective. (3) The court should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event and/or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action. (4) The court should always consider whether the objective of dealing with cases justly is better served by summary disposal of the particular issue or by letting all matters go to trial so that they can be fully investigated and a properly informed decision reached. The authority for principles (2)–(4) is to be found in: Three Rivers District Council v Bank of England (No.3) [2001] UKHL 16; [2001] 2 All ER 513 per Lord Hope at paras 92–93 (pp.541–542), considering Swain v Hillman [2001] 1 All ER 91 at 94–95; Green v Hancocks [2001] Lloyds Rep. PN212, per Chadwick L.J. at para 53 page 219, Col. 1; and Killick v Price Waterhouse Coopers [2001] Lloyds Rep. PN17per Neuberger J. at p.23 Col.2, 2–27.

“28.

(5) Summary disposal will frequently be inappropriate in complex cases. If an application involves prolonged serious argument, the court should, as a rule, decline to proceed to the argument unless it harbours doubt about the soundness of the statement of case and is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of the trial itself: see the Three Rivers case per Lord Hope at 94–98 (pp.542–544), considering the Williams & Humbert case. (6) It is inappropriate to deal with cases at an interim stage where there are issues of fact involved, unless the court is satisfied that all the relevant facts can be identified and clearly established: see Killick v Price Waterhouse at 20, Col.2 and 21 Col.1. (7) It is inappropriate to strike-out a claim in an area of developing jurisprudence. In such areas, decisions should be based upon actual findings of fact: see Farah v British Airways (unreported) 6th December 1999 (CA) per Lord Woolf M.R. at para 35 and per Chadwick L.J. at para 42, applying Barratt v London Borough of Islington [1999] 3 WLR 83and X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 694 and 741”

The first issue concerns the lawfulness of the actions taken by the Defendant’s employees at Rosedale on 11 to 13 May 2010. For the reasons given below, the application for summary judgment on this issue should be refused.

First, in my judgment, there is no basis upon which it could be said there is no realistic possibility of the Defending this issue. The Defendant’s version of the events are set out in paragraph 108 of the amended defence. That involves the Defendant’s employees visiting the premises, informing the residents of certain facts such as the arrest of the Second Claimant and her inability to return to Rosedale because of the conditions upon which she had been granted bail, the fact that the First Claimant was ill and Rosedale had no manger, and other matters. Against that background, no resident choose to stay. Those who had mental capacity decided that they would cease residing at Rosedale and others, who lacked capacity, had the decision taken that it was in their best interests to move elsewhere. Further evidence has been given by Mr Carver in his witness statement.

Given those facts, the Defendant contends that their actions were lawful. They rely upon, amongst other things, section 21 of the 1948 Act and the Directions. The duty is to make arrangements for providing residential accommodation to persons in specified categories who are in need of care and attention. Paragraph 3 of the Directions refer to an authority only being “required to make or continue making arrangements” if the preferred accommodation “appears to the authority to be suitable in relation to his needs”. It cannot be said, in my judgment, that there is no realistic possibility of the Defendant defending the claim. In particular, the reference to “continue making” arrangements and the fact that the accommodation must be “suitable”, opens the prospect of the Defendant contending that it is able to keep the arrangements under review and is able to make new arrangements for placement at different residential care homes if that is what residents want (or in the case of persons lacking capacity, if a person with authority to take decisions decides that it is in their best interests for that to happen).

For completeness, I note that the Claimants’ version of events in paragraph 69 of the re-amended particulars of claim is different. That alleges that employees of the Defendant took charge of the staff and residents and took over the conduct of Rosedale. It is alleged that they told residents and others that residents had to be placed at a home other than Rosedale and the sole focus of those employees was alleged to be “the forced removal of residents”. It is not possible to resolve the factual disputes that arise on this application for summary judgment. That will require the giving of evidence, including oral evidence and cross-examination.

Mr Hyams, on behalf of the Claimants, however, invites the court to grant summary judgment, on the assumption that the facts are as alleged in paragraph 108, as there would still be no realistic prospect of the Defendant establishing that the actions of its employees were lawful. He submitted that, once the Defendant has made arrangements for a resident to be placed at a home under section 21 of the 1948 Act, and until the Commission obtains an order under section 20 of the 2000 Act cancelling the relevant registrations necessary to carry on or manage the home, the Defendant has no power to enter the home, or to provide information about, or advise on, possible moves from the home to an alternative home. As it was put in submission, there is no statutory route by which the Defendant could intervene to advise or effect a change of residence of an individual unless requested by that individual or by a person with authority to act where the resident lacks capacity to make such a request. In my judgment, for the reasons given above, it cannot be said that there is no realistic prospect of the Defendant establishing that it had power to do what it says its employees did by reference to its powers, amongst others, under section 21 of the 1948 Act.

The second issue concerns the decision to refuse to give effect to the choice of potential residents. Paragraph 2 of the Directions provide that, subject to paragraph 3 of the Directions, a person must be accommodated at the place of his choice (referred to as the “preferred accommodation” if he has indicated that he wishes to be accommodated in preferred accommodation. It is not clear on the facts whether or not the Defendant refused to accommodate any person who had indicated a wish to be accommodated at Rosedale. The Claimant contends that it would be unlawful for the Defendant to refuse to make arrangements placing a person in Rosedale because the Defendant was not satisfied about the quality of care in circumstances where relevant registrations are in place and the Commission has not sought to cancel a registration under section 14 or 20 of the 2000 Act. The Defendant contends that it is entitled, in appropriate circumstances, to decline to place a person in a residential home if it has concerns over the quality of care being provided and it did not appear to them to be suitable to a person’s needs. In my judgment, it cannot be said that there is no realistic prospect of the Defendant being able to defend the issue.

I note that the Defendant asserts that there are other statutory powers, or possibly common law powers, that enable their employees to act in the way that the Defendant asserts they did. Given that there is no realistic prospect of the Defendant not being able to defend the two issues on the basis described above, so that summary judgment is on any analysis inappropriate, it is not necessary to consider those other bases. They, too, are matters that can be explored at the full trial should that be necessary.

Furthermore, the giving of summary judgment would be inappropriate and inconsistent with the principles identified in Wragg. As Potter L.J. observed, the purpose of resolving issues on a summary basis and at an early stage is to save time and cost. Conversely, the courts should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross-examination in any event.

In this case, the Claimants are seeking summary judgment on one aspect of one part of the elements of the tort of misfeasance in a public office. They seek to establish that what the Defendant’s employees did at Rosedale on 11 to 13 May 2010 was unlawful, and a decision not to make arrangements to place persons in Rosedale was unlawful. On any analysis, there will still need to be a trial of whether the employees acted either in “wilful disregard of the risk” that the acts were unlawful or “without an honest belief in the legality of those acts”: see paragraph 85 of the re-amended particulars of claim set out above. Oral evidence, and cross-examination, of witnesses on those issues will still be inevitable.

Furthermore, it is clear that there is a fundamental difference between the Claimants and the Defendant as to what the Defendant’s employees did do on 11 to 13 May 2010. That is the difference between paragraph 69 of the re-amended particulars of claim and paragraph 108 of the amended defence. Although counsel for the Claimants invited the court to proceed for the purposes of the application for summary judgment on the basis that the version in paragraph 108 of the amended defence was correct, it is clear that the Claimants are still contending that their version of events is correct. The court, at trial, will still be asked to decide whether the actions of the Defendant’s employees on 11 to 13 May 2010 were carried out for an improper purpose, namely to close Rosedale, put the Third Claimant out of business or cause loss to the First and Second Claimants: see paragraph 87.2 of the re-amended particulars of claim set out above. The Claimants are also still contending that the actions of the employees on those days in May “were the product of targeted malice” towards the First and Claimants: see paragraph 89 of the re-amended particulars of claim set out above.

In the circumstances, therefore, the Claimant is inviting the court to give a ruling on one issue of law, based on assumed facts. There will, however, inevitably have to be a full trial of liability, involving evidence and cross-examination of witnesses, to establish the true facts, and the court will then have to consider whether, given the facts as found, liability is established. In reality, therefore, the summary judgment sought will not save time and costs. It is not appropriate to give summary judgment on certain issues (still less so on assumed, but contested, facts) when those issues, and other issues, will all need to the subject of evidence at the full trial. For that second, separate reason, the application for summary judgment made in this case is not one that the court should grant.

The second application seeks the order for the disclosure of documents containing legal advice about the events at Rosedale on 11 to 13 May 2010. The application also seeks an order allowing the Claimants to use and rely upon documents containing legal advice which are already in the Claimants’ possession. The terms of the order sought are as follows:

“(1)

the Defendant disclose all documents showing and/or relating to the legal advice given to the Defendant about the legality of what its employees/agents did in relation to Rosedale on 1-13 May 2010, and

(2)

the Claimants may make use of and rely on any such documents already in their possession.”

The first part of the order sought requires disclosure of all documents showing or relating to the legal advice given to the Defendant about the legality of what its employees or agents did at Rosedale on 11 to 15 May 2010. The application is put on two bases. First, it is said that the documents were not created by or given to the persons who had authority to seek legal advice. Secondly, the Claimants contend that an exception to legal professional privilege should be made on public policy grounds where the claim is for misfeasance in a public office and the legal advice relates to the actions of the public officers in question.

This application concerns the privilege attaching to legal advice arising out of the confidential relationship of a lawyer and his client. Confidential communications passing between the client and the lawyer for the purpose of obtaining and giving legal advice fall within the scope of legal professional privilege. Legal professional privilege has been described as a “fundamental human right long established in common law” (per Lord Hoffman in R (Morgan Grenfell Ltd.) v Special Commissioner for Income Tax [2003] 1 A.C. 563 at paragraph 7 of the judgment.

The question of who is the client for these purposes arose in Three Rivers District Council v Bank of England (No. 5) [2003] Q.B. 1556. That case concerned communications in the context of an inquiry being held by Bingham L.J. (as he then was) into the supervision by the Bank of England of a particular bank, BCCI. The Bank of England appointed three Bank officials (referred to as the Bingham Inquiry Unit or “BIU”) to deal with all communications between the Bank and their solicitors. It was accepted that BIU was the client of the solicitors and that communications passing between the three officials forming the BIU and the solicitors were covered by legal advice privilege. The Court of Appeal held that documents prepared by the employees of the Bank in the particular circumstances of this case did not fall within the scope of legal advice privilege as they were not the clients of the solicitors for these purposes: see paragraphs 4, 30 to 31 of the judgment.

Mr Hyams relies upon that decision. He submits that legal advice privilege only applies to confidential communications between persons who are personally charged by the Defendant local authority with the decision-making power in question and the Defendant’s lawyers.

In the present case, the factual situation is as follows. The evidence of Ms Samantha Smith, who is a legal executive employed by the Defendant, is that:

“17.

I can confirm that the Defendant Local Authority has an in-house legal department providing legal advice to all officers and staff working for and on behalf of it, on all matters as and when necessary, pursuant to the work they are carrying for and on behalf of the Defendant. All officers and staff are entitled to use its services”.

In other words, the employees in the present case were authorised to obtain legal advice from the Defendant’s in house lawyers in connection with the discharge by them in the course of their work of functions on behalf of the Defendant. In those circumstances, the employees in question were clients for the purposes of legal advice privilege. Confidential communications between the employees and the Defendant’s lawyers for the purposes of obtaining and giving legal advice in connection with the discharge of those functions were, therefore, covered by legal professional privilege.

In relation to the second ground of this part of the application. Mr Hyams submits that an exception to the scope of legal professional privilege should be made on grounds of public policy reasons. The submission is that, in cases involving misfeasance in a public office, one category of documents, that is documents seeking or giving legal advice to an individual about what he or she could or not do in relation to the matters that are subject to the claim for misfeasance should be disclosed. Mr Hyams gave a number of examples, or reasons, why it might be considered desirable in the context of such claims to for there to be disclosure of this category of legal advice.

In my judgment, where documents properly fall within the scope of legal professional privilege, there is no basis for exempting a class of documents from the scope of that protection. That is apparent from the judgment of Lord Scott, with whom Lord Rodger, Baroness Hale and Lord Brown agreed, in Three Rivers District Council v Governor and Company of the Bank of England (No. 6) [2005] 1 A.C. 610, itself a case involving a claim for misfeasance in a public office. At paragraph 25, Lord Scott said:

”if a communication qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute (cf R (Morgan Grenfell & Co. Ltd.) v Special Comr of Income Tax [2003] 1 A.C. 563), but it is otherwise absolute. There is no balancing exercise that has to be carried out: see B v Auckland District Law Society [2003] 2 AC 736 , 756-759, paras 46-54).

For those reasons, the application for disclosure of documents showing or relating to legal advice given to the Defendant about the legality of what its employees or agents did in relation to Rosedale on 11 to 13 May 2010 is dismissed.

By the second part of the order sought, the Claimants seek an order permitting them to use and rely on documents containing legal advice relating to the legality of what its employees did at Rosedale on 11 to 13 May 2010. The documents referred to are documents provided pursuant to an order made by the First-tier Tribunal (Health, Education and Social Care Chamber) in proceedings between the Third Claimant and the Commission. The Defendant in these proceedings was not a party in those proceedings in the First-tier Tribunal. The basis for the application is said to be CPR 31.20 or CPR 31.22.

The background to the application is as follows. There were proceedings in the First-tier Tribunal. The Third Claimant applied for an order against Dr Williams, the Head of Adult Social Care at Herefordshire Council, requiring him “to disclose within these proceedings” (that is the proceedings between the Third Claimant and the Commission) certain documents pursuant to rule 16(1)(b) of the First-tier Tribunal (Health, Education and Social Care Chamber) Rules 2008 (“the Rules”). That rule provides that the First-tier Tribunal may:

“(b)

order any person to answer any questions or to produce documents in that person’s possession or control which relate to any issue in the proceedings”.

The First-tier Tribunal order states that, having considered rule 16(1)(b) of the Rules it would “grant the order sought” that is, the order for disclosure within the First-tier Tribunal proceedings, and ordered the Defendant to send the documents to named solicitors. There was provision for redaction of documents which were legally professional privileged. It appears that, at least in relation to two documents, the Defendant did not in fact redact legal advice which was subject to legal professional privilege.

The documents produced pursuant to the First-tier Tribunal order for use in those proceedings were, in fact, also used by the Claimants for the purpose of bringing their claim in the present High Court proceedings against the Defendant. That included using the two documents containing legal advice. Indeed, the Claimants actually reproduced at least part of the legal advice referred to in those documents in paragraphs 57 and 78 of their re-amended Particulars of Claim.

There is no doubt that that is what the Claimants’ legal representatives did. Mr Joel Leigh, the Claimants’ solicitor made a witness statement on 5 June 2015, in support of the application relating to the disclosure and use of documents containing legal advice. In paragraph 1, he explains that the Claimants were applying for an order, amongst other things, that:

“pursuant to CPR Rule 31.20 or Rule 31.22, the Claimants may make use of and rely on any such documents in their possession”

At paragraph 11, Mr Leigh says this:

“As to the Defendant’s argument that the documents had been mistakenly disclosed to our client, I should clarify that this disclosure was provided in November 2011 during First Tier Tribunal proceedings, i.e. before the current proceedings were issued. A copy of the letter from Geoff Hardy, a solicitor employed by the Defendant, dated 10 November 2011 which enclosed the documents disclosed is attached at page 74 and a copy of the Order of Judge Hillier dated 20 October 2011 referred to therein at pages 75-78. I was not at that time acting for the Claimants although Oliver Hyams of Counsel was. I am informed by him that whilst some documents disclosed at that time had been redacted, others, including those to which specific reference has been made in the Amended Particulars of Claim, were disclosed unredacted. There was no reason to suspect that any of the documents had been disclosed by mistake and indeed Mr Hyams has confirmed to me that he believed the documents to have been disclosed deliberately.”

It is difficult to understand on what basis the Claimant’s legal representatives could have considered it appropriate to use documents, including legal advice, provided pursuant to a production order made in one set of proceedings (to which the Defendant was not a party) in another set of proceedings against the Defendant without the agreement of the Defendant. The basis of the application to use and rely upon documents in their possession appears to take no account of the fact that the documents were produced for use in the First-tier Tribunal proceedings and not for use in other proceedings. Further, no consideration appears to have been given by the Claimants’ legal representatives as to whether use of the documents provided for the First-tier Tribunal proceedings breached any express or implied obligation not to use the documents for other purposes and if so, what the consequences of such a breach would be. In fairness, when this matter was drawn to the attention of counsel for the Claimants, it was explained that what had happened was an oversight although counsel contends that the Claimants should still be given permission to use and rely upon the documents.

The proper analysis of the position, in my judgment, is as follows. First, the documents were provided pursuant to an order made by the First-tier Tribunal for use within the First-tier Tribunal proceedings. That was the order sought. That was the order made. The Claimants, as a minimum, are seeking to use and rely upon documents provided pursuant to an order for the production of documents made in other proceedings. The Defendant was not a party to those other proceedings. The documents were not provided by the Defendant as part of the process of disclosure and inspection of documents within the present High Court proceedings.

Secondly, even in the absence of an express restriction in the order for production, there would, on the authorities and as a matter of principle, have been an implied obligation on a party receiving them, or an implied undertaking would be treated as being given, that the documents produced pursuant to that order would not use them for any collateral purpose, including other litigation, without the leave of the court or the express consent of the party disclosing or producing the document.

At common law, an implied undertaking was imposed in relation to documents disclosed in court proceedings (see, e.g., Riddick v Thames Board Mills [1977] Q.B. 881 and the cases discussed in Matthews and Malek “Disclosure” 4^th ed. at paragraph 19.01). The obligation is owed by the parties and their solicitors (see Matthews and Malek “Disclosure” 4^th ed. at paragraph 19.09). Breach of an implied undertaking was a contempt and the use of documents in breach of the implied undertaking could be restrained by the grant of an injunction. The position was modified in relation to documents read to or by the court or referred to a hearing which has been made public following the decision of the European Court of Human Rights. The position in relation to court proceedings is now regulated by CPR 31.22 (see SmithKline Beecham plc v Generics (UK) Ltd.) [2004] 1 W.L.R. 1479)

In my judgment, as a matter of principle, either a similar implied undertaking is to be treated as given in proceedings in other tribunals where documents can be required to be disclosed or produced, or the statutory provisions governing the making of orders for disclosure or production of documents will be read as imposing such an obligation. That is consistent with existing authority. In McBride v The Body Shop International plc [2007] EWHC 1658, the High Court held that a document disclosed in the course of proceedings before an employment tribunal could not be used in other proceedings (there, libel proceedings brought in the High Court).

Furthermore, that position is consistent with the fact that documentation is being obtained by means of compulsory powers for particular purposes. That involves an infringement of the rights of others to maintain privacy in relation to their documents. In the present case, the order for production was made in relation to a person who was not party to the proceedings in the First-tier Tribunal. It is not to be expected that where copies of documents belonging to one person are produced, pursuant to a production order for use in particular proceedings, that persons who obtain the documents are then able to use them for other purposes. That is the logic underlying the implied undertaking which was imposed at common law in relation to the courts and the same logic applies to legal proceedings before other tribunals. The need for a restriction on the use of documents obtained under compulsory powers for use in one set of proceedings is also consistent with the wider principle, recognised in Marcel v Metropolitan Police Commissioner [1992] Ch. 225 at page 237 that:

“private information obtained under compulsory powers cannot be used for purposes other than those for which the powers were conferred”.

In submissions made after the hearing, Mr Hyams submitted that the position in the present case was governed now by CPR 31.22 and that that rule had superseded the common law so that there was no implied undertaking. I doubt that that is correct in relation to the proceedings before the First-tier Tribunal at issue in the present case. First, the Civil Procedure Rules apply to proceedings in the County Court, the High Court and the Civil Division of the Court of Appeal (see CPR 2.1). They do not apply to proceedings before tribunals. The provisions of the CPR could not impose an obligation in relation to documents produced in proceedings before tribunals. Secondly, CPR 31.22 applies to a party to whom documents have been disclosed. That is referring to disclosure in accordance with the provisions of the CPR not other types of disclosure. It is not apt on its terms, in any event, to describe the production of documents by a non-party pursuant to a statutory provision such as rule 16(1)(b) of the Rules. In any event, if Mr Hyams is correct and CPR 31.22 did apply to the proceedings before the First-tier Tribunal, then that rule would itself impose a restriction on the use of documents disclosed in the proceedings. The documents could only be used with the permission of the court or the agreement of the party who disclosed the document and the person to whom the document belongs or in the circumstances referred to in CPR 31.22(a). If the express restriction applies, it makes it even harder to understand how the Claimants’ legal representatives could consider it appropriate to use the documents without the permission of the court or agreement of the relevant persons.

For those reasons, any restriction on the use of documents disclosed by parties during proceedings before a tribunal, or produced by a non-party pursuant to an order of such a tribunal is to be found either by reason of an obligation arising from the statutory provisions in issue or an implied undertaking is to be treated as given that documents disclosed or produced in those proceedings cannot be used for other purposes. I am conscious that the issue and, in particular, the question of the appropriate method of enforcement of any such obligation or any implied undertaking in relation to tribunals was not fully argued before me. I do not, therefore base my decision on any breach of any implied undertaking in the present case, nor is it necessary do so as the First-tier Tribunal expressly ordered that production of documents was for use in the proceedings before it.

It is against that background that the application for permission to use and rely upon the documents disclosing legal advice needs to be assessed. The first ground upon which the application is made is CPR 31.20. That provides as follows:

“Restriction on use of a privileged document inspection of which has been inadvertently allowed.

31.20

Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contends only with the permission of the court”

In my judgment, reliance on this provision of the CPR is misconceived. The rule addresses the situation where there has been disclosure and inspection of documents in the course of the proceedings. If, during that process, documents are inadvertently allowed to be inspected, then permission is required to use the document. In those circumstances, the principles identified in Al Fayed v Commission of Police of the Metropolis [2002] EWCA Civ. 780 and Rawlinson & Hunter Trustees SA (as Trustee of the Tchenguiz Family Trust) v Director of the Serious Fraud Office (No. 2) [2015] 1 W.L.R. 797 are relevant. The present case does not involve a situation where the Defendant has, in the course of disclosure in these proceedings, inadvertently allowed the Claimants to inspect documents containing legal privilege. The Claimants are seeking to use documents produced by a non-party pursuant to an order for production made in other proceedings before the First-tier Tribunal. The Defendant was not a party to those proceedings. Documents were not inspected during those proceedings as part of the disclosure requirements. Rather, the documents were produced pursuant to an order made under the Rules. Consequently, CPR 31.20 does not apply to the situation.

The second basis for the application is CPR 31.22. That provides that:

“(1)

A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where–

(a)

the document has been read to or by the court, of referred to, at a hearing which has been held in public;

(b)

the court gives permission; or

(c)

the party who disclosed the document and the person to whom the document belongs agree.”

The rule appears to have been applied by Eady J. in McBride v The International Body Shop plc [2007] EWHC 1658 (Q.B) where documents had been disclosed by a party to proceedings in the employment tribunal. There may be an issue, strictly, as to the applicability of that rule to the present case, given that the rule applies to a party to whom a document has been disclosed where, in this case, the situation involves an order requiring production of a document by a non-party to proceedings. It is not clear that CPR 31.22 was intended to apply to, and permit use of, documents produced by a non-party to proceedings in compliance with an order for production. The possibility of there being some inherent jurisdiction, exercisable by reference to similar principles, was not canvassed before me. It cannot necessarily be assumed that the court has jurisdiction to permit the use of documents produced by non-parties pursuant to the exercise of coercive or compulsory powers. That issue would need to be fully argued. For present purposes, however, I assume, without deciding, that either CPR 31.22 applies or there is some form of inherent jurisdiction which would permit permission to be granted.

In my judgment, it would not be appropriate to grant permission to the Claimants to use documents containing legal advice which were produced for the purposes of other proceedings. I reach that conclusion for the following reasons. First, the documents were obtained by compulsion. Secondly, they were obtained in circumstances where they were only to be used for the proceedings in the First-tier Tribunal. Thirdly, they contain legal advice and, as indicated above, there is a very high value placed upon parties being able to protect legally professionally privileged documents. Fourthly, the Claimants are seeking to take advantage of an error on the part of the Defendant in complying with the production order of the First-tier Tribunal without, it seems, realising that these documents contained legal advice. It is not appropriate, in my judgment, to grant permission to the Claimants in these circumstances to use and rely upon the documents in these proceedings which are in their possession as a result of the production order made by the First-tier Tribunal in other proceedings.

The Claimants now suggest that it should be inferred that the Defendant has consented to the use of documents. The basis for that contention is that the Claimants’ solicitor referred in a letter dated 1 May 2013, headed private and confidential, to some of the documents, including at least one of the documents containing legal advice, enclosing a copy. That letter discussed, amongst other things a possible claim against the Defendant by the Claimants. It is said that as the Defendant did not object to the use of those documents in the High Court proceedings they must be taken to have consented to their use. First, the Defendants do not, in fact, consent to the use of the documentation containing legal advice in these proceedings. They have sought to resist inspection of the documents during disclosure in these proceedings. Secondly, the correct position is that the Claimants should not have used the documents obtained in the First-tier Tribunal in these proceedings without, as a minimum, having first obtained the permission of the court or the agreement of the Defendant.

I doubt that any concept of implied consent can justify the use of the documents (as opposed to seeking the agreement of the person whose documents they are, as contemplated by CPR 31.22(1)(c)). Furthermore, and separately, I do not consider that, on the facts, there is sufficient evidence of implied consent. The Claimants used the documents to write to the Defendant about a possible claim without, it appears, seeking the Defendant’s consent to the use of the documents and in breach of the First-tier Tribunal order. The fact that it is said that the Defendant did then not object to the use of the documents does not, in my judgment, amount to sufficient evidence of agreement to the use of the documents, including those containing legal advice, in these proceedings for the purpose of CPR 31.22(1)(c). For those reasons, permission to use or rely upon documents containing legal advice already in the possession of the Claimants following their production by the Defendant in the First-tier Tribunal proceedings is refused.

For completeness, I note that the Claimants here do not base their application on any claim that the documents were read out or referred to at a tribunal hearing held in public, nor was that suggested in submission. There is no evidence that that occurred. Different considerations may apply in considering any statutory restriction on the use of documents, the scope of any implied undertaking and the jurisdiction of the court to permit reliance on documents where documents ordered to be produced have been read out or referred to at a hearing of the tribunal held in public.

Two further points arise. The application that has been made only seeks documents containing legal advice. There was a suggestion that one or more of the documents obtained under the production order made by the First-tier Tribunal was relevant in these proceedings, and did not contain legal advice. There is no application before this court in relation to documents on the basis that certain documents said to contain legal advice do not in fact do so. The only application relates to documents said to contain legal advice. If the Claimants consider that the Defendant, having disclosed the existence of documents, have wrongly claimed legal professional privilege in respect of certain documents and wrongly refused inspection, then the matter should be dealt with by way of an application pursuant to CPR 31.19. Secondly, the courts have jurisdiction to grant an injunction restraining the use or requiring the return of confidential information, including legally privileged documents, see, for example, Goddard v Nationwide Building Society [1987] Q.B. 670 and ISTIL Group Inc v Zahoor [2003] 2 All E.R. 252. There is no application at present by the Defendants for such an injunction.

For those reasons, the application for summary judgment is refused. The application for disclosure of documents containing legal advice relating to the legality of what the Defendant’s employees did at Rosewood on 11 to 13 May 2010 and permitting the Claimants to use or rely upon any such documents in their possession is refused.