GB v Home Office

Introduction

In these proceedings, the claimant, GB, pursues a claim in negligence against the defendant arising out of medical treatment which she received whilst detained by the defendant at Yarl’s Wood Immigration Removal Centre between 16 June and 27 July 2012. It is said that the prescription of an anti-malarial drug caused her to suffer a severe psychotic reaction. In the autumn of the last year, Master Leslie ordered the trial of a preliminary issue as to whether or not the defendant owed to GB a non-delegable duty of care. If it did not, the claim in negligence must fail, although there is a separate claim against the defendant for unlawful detention which is unaffected by this issue. If there was such a duty, then there are a variety of other disputes arising out of the allegations of negligence and causation which are also unaffected by this preliminary issue.

Anonymity

At the outset of the trial, Mr McCullough QC applied for an anonymity order. This was put on the basis that such an order was necessary to protect GB from those who may seek to target and exploit her as a result of knowing that she has brought these proceedings, which could result in substantial compensation. It was said that, because she lived in the community, the prospects of such targeting was not fanciful.

My initial view was that an anonymity order was not appropriate in this case. However, Mr McCullough QC drew my attention to the recent Court of Appeal decision in JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ. 96. In that case the Court of Appeal made an anonymity order in respect of an approval hearing concerning a child’s claim for damages following severe birth injuries. The Court of Appeal not only concluded that an anonymity order was appropriate in that case, but they also set out wide-ranging guidelines in respect of all cases where children or other vulnerable persons would face an invasion of privacy if their identity became public. At paragraph 33 of his judgment, Moore-Bick LJ said:

“An important aspect of justice is consistency. The question for decision in each case is whether a derogation from the principle of open justice is necessary in order to ensure that justice itself is done. At one level that must depend on the facts of the individual case, but it is important to ensure a reasonable measure of consistency in order [to] prevent the administration of justice being brought into disrepute. This is an area in which fine distinctions are difficult to justify and not easily understood… It appears that applications for anonymity orders are becoming more frequent and, according to the very experienced judge who dealt with the matter below, there is uncertainty among judges about the course that should be taken. In those circumstances we think it appropriate for us to provide some guidance for judges at first instance.”

He went on to identify one of the principles to be applied: that, unless the judge was satisfied after hearing argument that it was not necessary to do so, an anonymity order should be made.

I respectfully agree with Moore-Bick LJ’s observations about the need for consistency. I also note what is an effective reversal of the ordinary burden of proof in cases involving children and (as in this case) vulnerable people: that an anonymity order should be made unless it can be shown to be unnecessary. It has not been shown to be unnecessary in the present case. In those circumstances, despite my initial doubts, I concluded at the hearing that, in accordance with the guidance from the Court of Appeal, an anonymity order should be made.

The Preliminary Issue

By an order dated 22 October 2014, the relevant parts of which were by consent, Master Leslie ordered that there should be a preliminary issue as follows:

“(i)

Whether or not the defendant owed a non-delegable duty of care to the claimant so as to render it liable to the claimant in respect of any negligence acts or omissions on the part of those providing medical care at Yarl’s Wood IRC, in particular Dr Inskip (were such negligence to be established);

(ii)

Further alternatively, whether or not the defendant was vicariously liable for the acts or omissions of the medical practitioner and other Yarl’s Wood health care staff.”

Although the scope of the duty alleged is not identified in the order, it was submitted by Mr McCullough QC at the hearing that it was “the duty to take reasonable care in the medical advice and treatment provided to those in the control of the Home Office through being in immigration detention”. He said emphatically that, contrary to what Ms Anderson had suggested, he was not alleging some sort of higher duty to provide “infallible medical care” or “perfect care in every situation”. The preliminary issue was, therefore, whether there was a non-delegable duty owed by the defendant to GB to take reasonable care in the medical advice and treatment provided to her whilst she was a detainee.

Throughout the hearing before me, both parties made copious references to the judgment of Lord Sumption in Woodland v Swimming Teachers Association and Others [2013] UKSC 66; [2014] AC 537. That was also a case where a preliminary issue was identified about the existence or otherwise of a non-delegable duty of care. What the parties failed to do was refer me to paragraph 2 of that judgment, in which Lord Sumption expressed doubts about the wisdom of hearing a preliminary issue in that case. He said:

“But it must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation. The pleadings are unsatisfactory. There are no findings of fact and almost everything is disputed. A decision of the point presently before us will not be decisive of the litigation either way, because there are other bases of claim independent of it. The point has taken more than two years to reach this stage, during which, if the allegation had been allowed to go to trial, it would almost certainly have been decided by now. As it is, regardless of the outcome of this appeal it will now have to go back to the High Court to find the relevant facts.”

In my judgment, much of what was said by Lord Sumption in Woodland is equally applicable here. Even if I found no duty, the defendant would remain in these proceedings because of the separate claim for wrongful detention. The preliminary issue therefore goes only to whether or not there should be further parties to the proceedings, namely Serco, the company running Yarl’s Wood on behalf of the defendant, and/or the doctor who prescribed the anti-malarial drug. In my view, this did not justify the use of a costly preliminary issue procedure in this case. In commercial litigation (funded by individuals or companies) preliminary issues are relatively rare because they are not generally regarded as efficient. It seems only to be in publicly-funded cases, often where there is an echo of the procedures of the Administrative Court, where this way of proceeding remains popular. In my judgment, it is time for a rethink.

However, the difficulty with which I was faced on the morning of the hearing was the difficulty always faced by first instance judges in this situation. They may be sceptical as to the utility of a preliminary issue, but if they refuse to hear it, they are merely adding to the costs of an action which (as here) is being publicly-funded on both sides. They therefore have little option but to listen to the arguments and resolve the issue, no matter how doubtful they may be as to the value of the exercise.

The Agreed Statement of Facts

The problems in this case were compounded by the failure on the part of the defendant to agree a Statement of Facts prior to trial. Master Leslie very sensibly ordered that a Schedule of Facts should be agreed at least 42 days before the trial. There was no such agreement. Indeed, at the start of the hearing, the Schedule of Facts remained in dispute. I indicated that I was not prepared to hear the case on that basis. Ultimately a Schedule of Facts was agreed, based on the proposals from the claimant, with deletions by the defendant. It is attached at Section 11, as Appendix 1.

In summary, the factual position is this. GB is a Nigerian national born on 15 September 1978. After 22 June 2010 she was an illegal over-stayer in the United Kingdom. She became pregnant. In June 2012 she was arrested following a public argument with the man whom she said was the father of her child. She accepted a caution for criminal damage and was detained under the defendant’s immigration powers. On 19 June 2012 she was taken to Yarl’s Wood IRC, which is run on behalf of the defendant by Serco.

When GB arrived she had a medical screening. Two days later, on 21 June 2012 she was seen by Dr Inskip, a general practitioner employed by a local GP surgery. He conducted an assessment and prescribed GB with Mefloquine, an anti-malarial drug. This was because the defendant was proposing to send GB back to Nigeria (that is why she was in Yarl’s Wood in the first place) and there are clear rules relating to the prescription of anti-malarial drugs to those who might be sent back to countries where malaria is commonplace.

On 10 July 2012, GB was refused asylum and the decision was taken to remove her from the United Kingdom. It is GB’s case that from about that time onwards, she began to exhibit signs of psychosis. On 16 July 2012, following an assessment by a consultant psychiatrist, Dr Jane Mounty, it was suggested that GB had a drug-induced psychosis, triggered by the Mefloquine, and that she was sectionable under the Mental Health Act. On 27 July 2012, she was released from detention. She was subsequently granted refugee status until 7 July 2019. Apart from the claim for wrongful detention, the only other claim in these proceedings relate to the allegedly negligent prescription of Mefloquine.

The Relevant Statutory Framework and Regulations

The relevant parts of the Immigration and Asylum Act 1999 are in Part VIII, Detention Centres and Detained Persons. Section 149 provides as follows:

“149.— Contracting out of certain [removal centres].

(1)

The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any [removal centre] or part of a [removal centre].

(2)

While a [removal centre] contract for the running of a [removal centre] or part of a [removal centre] is in force—

(a)

the [removal centre] or part is to be run subject to and in accordance with the provisions of or made under this Part; and

(b)

in the case of a part, that part and the remaining part are to be treated for the purposes of those provisions as if they were separate [removal centres].

(3)

If the Secretary of State grants a lease or tenancy of land for the purposes of a [removal centre] contract, none of the following enactments applies to the lease or tenancy—

(a)

Part II of the Landlord and Tenant Act 1954 (security of tenure);

(b)

section 146 of the Law of Property Act 1925 (restrictions on and relief against forfeiture);

(c)

section 19(1), (2) and (3) of the Landlord and Tenant Act 1927 and the Landlord and Tenant Act 1988 (covenants not to assign etc.);

(d)

the Agricultural Holdings Act 1986;

(e)

sections 4 to 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (irritancy clauses);

(f)

the Agricultural Holdings (Scotland) Act 1991 [and the Agricultural Holdings (Scotland) Act 2003 (asp 11)];

(g)

section 14 of the Conveyancing Act 1881;

(h)

the Conveyancing and Law of Property Act 1892;

(i)

the Business Tenancies (Northern Ireland) Order 1996.

(4)

The Secretary of State must appoint a contract monitor for every contracted out [removal centre].

(5)

A person may be appointed as the contract monitor for more than one [removal centre].

(6)

The contract monitor is to have—

(a)

such functions as may be conferred on him by [removal centre] rules;

(b)

the status of a Crown servant.

(7)

The contract monitor must—

(a)

keep under review, and report to the Secretary of State on, the running of a [removal centre] for which he is appointed; and

(b)

investigate, and report to the Secretary of State on, any allegations made against any person performing custodial functions at that centre.

(8)

The contractor, and any sub-contractor of his, must do all that he reasonably can (whether by giving directions to the officers of the [removal centre] of otherwise) to facilitate the exercise by the contract monitor of his functions.

(9)

“Lease or tenancy” includes an underlease, sublease or sub-tenancy.

(10)

In relation to a [removal centre] contract entered into by the Secretary of State before the commencement of this section, this section is to be treated as having been in force at that time.”

Section 151 provides as follows:

“151.— Intervention by Secretary of State.

(1)

The Secretary of State may exercise the powers conferred by this section if it appears to him that—

(a)

the manager of a contracted out [removal centre] has lost, or is likely to lose, effective control of the centre or of any part of it; or

(b)

it is necessary to do so in the interests of preserving the safety of any person, or of preventing serious damage to any property.

(2)

The Secretary of State may appoint a person (to be known as the Controller) to act as manager of the [removal centre] for the period—

(a)

beginning with the time specified in the appointment; and

(b)

ending with the time specified in the notice of termination under subsection (5).

(3)

During that period—

(a)

all the functions which would otherwise be exercisable by the manager of the contract monitor are to be exercisable by the Controller;

(b)

the contractor and any sub-contractor of his must do all that he reasonably can to facilitate the exercise by the Controller of his functions; and

(c)

the staff of the [removal centre] must comply with any directions given by the Controller in the exercise of his functions

(4)

The Controller is to have the status of a Crown servant.

(5)

If the Secretary of State is satisfied that a Controller is no longer needed for a particular [removal centre], he must (by giving notice to the Controller) terminate his appointment at a time specified in the notice.

(6)

As soon as practicable after making an appointment under this section, the Secretary of State must give notice of the appointment to those entitled to notice.

(7)

As soon as practicable after terminating an appointment under this section, the Secretary of State must give a copy of the notice of termination to those entitled to notice.

(8)

Those entitled to notice are the contractor, the manager, the contract monitor and the Controller.”

Section 153 provides as follows:

“153.— [Removal centre] rules.

(1)

The Secretary of State must make rules for the regulation and management of [removal centres].

(2)

[Removal centre] rules may, among other things, make provision with respect to the safety, care, activities, discipline and control of detained persons.”

The Detention Centre Rules provide a detailed series of rules relating to the running of IRCs. The detail is exhaustive: for example, by reference to Rule 18, there is a minimum of one hour that each detainee is entitled to be in the open air every day.

Rule 33 deals with health care in the following terms:

“33.— Medical practitioner and health care team

(1)

Every detention centre shall have a medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of the Medical Act 1983 [who holds a licence to practise].

(2)

Every detention centre shall have a health care team (of which the medical practitioner will be a member), which shall be responsible for the care of the physical and mental health of the detained persons at that centre.

(3)

Each member of the health care team shall (as far as they are qualified to do so) pay special attention to the need to recognise medical conditions which might be found among a diverse population and the cultural sensitivity appropriate when performing his duties.

(4)

The health care team shall observe all applicable professional guidelines relating to medical confidentiality.

(5)

Every request by a detained person to see the medical practitioner shall be recorded by the officer to whom it is made and forthwith passed to the medical practitioner or nursing staff at the detention centre.

(6)

The medical practitioner may consult with other medical practitioners at his discretion.

(7)

All detained persons shall be entitled to request that they are attended by a registered medical practitioner or dentist other than the medical practitioner or those consulted by him under paragraph (6), so long as—

(a)

the detained person will pay any expense incurred;

(b)

the manager is satisfied that there are reasonable grounds for the request; and

(c)

the attendance is in consultation with the medical practitioner.

(8)

The medical practitioner shall obtain, so far as reasonably practicable, any previous medical records located in the United Kingdom relating to each detained person in the detention centre.

(9)

The health care team shall ensure that all medical records relating to a detained person are forwarded as appropriate following his transfer to another detention centre or a prison or on discharge from the detention centre.

(10)

All detained persons shall be entitled, if they so wish, to be examined only by a registered medical practitioner of the same sex, and the medical practitioner shall ensure that all detained persons of the opposite sex are aware of that entitlement prior to any examination.

(11)

Subject to any directions given in the particular case by the Secretary of State, a registered medical practitioner selected by or on behalf of a detained person who is party to legal proceedings shall be afforded reasonable facilities for examining him in connection with the proceedings.”

The Immigration Directorate’s Instructions are also very detailed. Section 5 is headed ‘Inoculations and Other Preventative Treatment (Prophylaxis) For Persons Being Removed from the United Kingdom’. Sections 5.6 and 5.7 read as follows:

“5.6

People detained prior to removal have access to medical care and advice from healthcare professionals in immigration removal centres. Detainees are not charged for treatment.

Where removal centre medical staff consider that preventive treatment should be given, removal directions may be set but should be dependant on any pre-departure element of such treatment being completed. Medical advice on preventive measures, including advice leaflets, should be made available to detainees as soon as possible, and should if possible be given as appropriate in the initial medical examination or screening which all detainees receive within 24 hours of detention, and in any case when removal directions are set. Where removal medical staff consider that preventive treatment is necessary and can be completed (subject to para 5.7 below) without delay to planned removal, removal directions may be set but for a date after the treatment is completed. Caseworkers and those responsible for setting removal directions should consult the health care professionals, via the IND team at the centre, on the appropriate minimum time lag between administering medication and removal taking place.

Caseworkers, those responsible for setting removal directions and IND teams at removal centres should document case histories as thoroughly as possible. This is because, if a JR is commenced, access to a claimant’s medical records cannot be guaranteed. Therefore, if staff have carefully minuted, for example, any refusal of malarial prophylaxis after it has been offered, then that may make it easier to keep RDs in place, respond to any further representations on the point and/or defend any JR claim. These points should if possible be minuted directly on CID.

5.7

Preventive treatment for malaria is a special case in that medication must be taken shortly before travel. People detained prior to removal may not therefore be able to make the necessary arrangements for themselves. Any malaria prophylaxis recommended as appropriate by the removal centre medical staff for pregnant women and children under 5 should normally be provided and time allowed for it to take effect before removal. The guidance by the Advisory committee on Malaria Prevention (at Appendix, together with a supplementary letter) should be followed and copies of it should be given to the detainees concerned. Specialist advice (according to the relevant condition or age of the detainees), which can be obtained from a helpline, should be provided for pregnant women, children under 5 and those with medical conditions which might contra-indicate the prophylaxis. In the event of adverse side-effects, time should also be allowed to obtain and follow further medical advice. Removal need not be deferred in any case where a detainee declines (on his or her own behalf or on behalf of a dependant child) to take malaria prophylaxis that has been provided on medical advice.”

Finally I was referred to the contract between the defendant and Serco which referred to the above documents (with the exception of the Immigration Directorate’s Instructions), but which did not appear to add anything further. The contract between Serco and the doctors has not been found by either party. The fact that the defendant was unable to supply a copy of this contract, pursuant to which those whom the defendant has detained in Yarl’s Wood were medically treated, was surprising.

Woodland and the Clarification of the Law Relating to Non-Delegable Duties

Although Lord Sumption had reservations about the utility of the preliminary issue in Woodland, there can be no doubt that his judgment provided a much-needed clarification of the law in this area. At paragraphs 3-6 he succinctly explained the background to non-delegable duties, noting that:

The second category of non-delegable duty was relevant in Woodland and is relevant in the present case. At paragraph 7 Lord Sumption said:

“7…It comprises cases where the common law imposes a duty on the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own.”

Then, following an exhaustive review of the origins of this exception; the employment cases; the hospital cases; and the Australian case law; Lord Sumption addressed the circumstances in which a non-delegable duty might arise. He said this:

“In what circumstances will a non-delegable duty arise?

23.

In my view, the time has come to recognise that Lord Greene MR in Gold’s case [1942] 2 KB 293 and Denning LJ in Cassidy’s case [1951] 2 KB 343 were correct in identifying the underlying principle, and while I would not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given rise to non-delegable duties of care. If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features: (1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes. (2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren. (3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties. (4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it. (5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

24.

In A (A Child) v Ministry of Defence [2005] QB 183, para 47 Lord Phillips of Worth Matravers MR, delivering the leading judgment in the Court of Appeal, suggested that “hitherto a non-delegable duty has only been found in a situation where the claimant suffers an injury while in an environment over which the defendant has control.” This is undoubtedly a fundamental feature of those cases where, in the absence of a relevant antecedent relationship, the defendant has been held liable for inherently hazardous operations or dangers on the public highway. But I respectfully disagree with the view that control of the environment in which injury is caused is an essential element in the kind of case with which we are presently concerned. The defendant is not usually in control of the environment in which injury is caused by an independent contractor. That is why as a general rule he is not liable for the contractor's negligence. Where a non-delegable duty arises, the defendant is liable not because he has control but in spite of the fact that he may have none. The essential element in my view is not control of the environment in which the claimant is injured, but control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility.”

At paragraph 25 Lord Sumption also considered the test as to whether it would be fair, just and reasonable to impose a non-delegable duty of care in that case. He made a number of points which refer back in one way or another to his five ingredients in paragraph 23. They were inevitably connected to the educational background in that case. At paragraph 26, applying those principles to the present case, he concluded that there was a non-delegable duty owed by the local educational authority to the claimant. He said “the alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. It must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty.”

The Application of Woodland to the Present Case

On behalf of GB, Mr McCullough QC argued that Woodland was clearly applicable to the present case and that each of the five features or elements of a non-delegable duty identified by Lord Sumption in paragraph 23 of his judgment applied to the present case. He also submitted that the finding of such a duty in the present case was fair, just and reasonable. Ms Anderson for the defendant said that these elements were not applicable to the present case and that the finding of a duty would not be fair, just and reasonable. I propose to set out my views on this issue in some detail since it is, in my judgment, the critical debate arising out of these preliminary issues.

Vulnerability

A non-delegable duty only arises in circumstances where the claimant is especially vulnerable or dependant on the protection of the defendant against the risk of injury. Lord Sumption expressly noted that other examples of such a situation were likely to include prisoners. Mr McCullough QC therefore argued that GB, as a detainee at Yarl’s Wood, was expressly within this first category.

Ms Anderson’s riposte to this was twofold. First she suggested that a detainee in an IRC was a long way removed from a prisoner in an ordinary prison and that the regime in IRCs was much more benign. Her second point was that GB was not dependant on the protection of the defendant.

I reject both of Ms Anderson’s submissions on this point. There is no meaningful distinction to be drawn between a prisoner and a detainee in an IRC. Inmates of both establishments have one vital feature of their lives in common: they are held against their will and cannot leave the place where they are detained. Moreover I consider that those detained in an IRC on the orders of the defendant are thus dependant on the protection of the defendant. The one follows the other. It explains why Lord Sumption expressly identified prisoners within this category of relationship. For those reasons therefore, this first element of a non-delegable duty is made out in the present case.

An Antecedent Relationship

Mr McCullough QC argued, by reference to Lord Sumption’s second ingredient, that there needed to be an antecedent relationship which placed the claimant in the actual custody of the defendant, and from which it was possible to impute the assumption of a positive duty on the part of the defendant to protect the claimant from harm. A characteristic of such a relationship is an element of control over the claimant. He said that all of those features were present in this case.

Ms Anderson accepted that there was a duty to protect but she said that it was not a special duty because of what she described as the “detention centre context”. It was not entirely clear what this meant.

In my view, there can be no doubt that the second element of the non-delegable duty is made out in the present case. Since GB was being detained on the orders of the defendant, she was in the actual custody of the defendant. There was a significant element of control, as identified in Section 4 above (including the statutory power to monitor; to intervene; and to make rules and provide instructions governing how Yarl’s Wood is run). There was a positive duty to protect GB from harm. In my view, it was in recognition of that positive duty that the detailed Detention Centre Rules and Immigration Directorate’s Instructions were made and promulgated.

No Control

As to Lord Sumption’s third ingredient, Mr McCullough QC said that GB had no control over how she was dealt with. As a detainee, she was obliged to accept the medical treatment offered to her. Although she could have asked to see another medical practitioner, the rules make clear that that would have been at her own expense. It was completely different to the choices open to someone who was at liberty, and who could choose which NHS practice they went to and which doctor within that practice that they saw. There was, he said, no free choice.

Ms Anderson said that, although there was control of GB within the detention centre, “there was no medical control”. She said that GB’s position was no different to that of someone who was at liberty. Ultimately, in whichever situation the defendant was in, the medical services were being provided by the State.

In my view, Mr McCullough QC was right to say that Ms Anderson’s submissions in this context were “unreal”. GB was detained by the defendant in an IRC and so, as the Detention Centre Rules make plain, she was obliged to accept the medical treatment she was given. There was no free choice. Her position was different to that of someone who was at liberty. The third element is also therefore made out.

Delegation of an Integral Part of the Positive Duty

As to the fourth ingredient, Mr McCullough QC said that the provision of medical treatment to those who were detained at an IRC was an integral part of the positive duty which the defendant had assumed towards the claimant. That had been delegated to a third party, and the third party was exercising, for the purposes of the function delegated to it, the defendant’s custody or care of the claimant and the element of control that went with it.

I am in no doubt that Serco were exercising a function delegated to it by the defendant. The issue is whether it can be said that the provision of medical treatment of detainees was an integral part of the positive duty owed. Ms Anderson said that it was not, and at least inferred that the provision of medical care was simply an incidental element of their detention.

Of the five elements identified by Lord Sumption, I have found this the most difficult to apply in the present case. On the one hand, I accept that the provision to her of medical services was not the reason that GB was in Yarl’s Wood. But I have concluded that the provision of medical care was an integral part of the positive duty owed by the defendant to GB. There are two reasons for that: one general and one specific.

The general reason can be found in the Detention Centre Rules and the other requirements referred to in Section 4 above: they all stress the importance of the provision of proper medical care to detainees. On a fair reading of those documents, I consider that this was an integral part of the duty owed to GB. I note that there is some recent authority in support of this conclusion: see paragraph 51 below.

But even if I was wrong about that, and the provision of medical care was not generally integral to the defendant’s duty to GB, I still conclude that, on the agreed facts in this case, the prescription of anti-malarial drugs was integral to the duty owed to GB. That is because the defendant was preparing GB for at least the possibility of her removal back to Nigeria. That is why she was detained in Yarl’s Wood in the first place. Because removal to Nigeria was a possibility, she was given anti-malarial drugs to prepare for her return. This was one of the defendant’s key responsibilities: not to remove an over-stayer to a country where malaria is prevalent, without taking steps to protect that person from that disease when he or she was returned. Thus a prescription of the anti-malarial drug (which is at the heart of the claimant’s case in negligence), arose directly out of the defendant’s detention and control of GB prior to removal, and was therefore an integral part of the positive duty assumed towards GB, the performance of which had been delegated to Serco.

Negligence in the Performance of the Core Function

My answer to this point is really wrapped up in the previous point. If that analysis is right, then there was negligence in the performance of the core function. Whether or not there was negligence of course remains to be tested at some future trial, but for the purposes of this preliminary issue, this final ingredient too is made out.

Fair, Just and Reasonable

If, as I have found, the five ingredients are in place, the next question is whether it is fair, just and reasonable to find a non-delegable duty. Mr McCullough QC’s arguments were really reflections of the points that he had made as to why a duty of care existed in the first place. He said that detainees in immigration detention were inherently vulnerable and were highly dependant on the observance of proper standards of care. They had to submit to lawful detention with no influence over how the defendant may delegate its duties towards detainees. The duty was open-ended but only concerned with functions that the defendant was required to perform.

There were two more pragmatic considerations which he urged upon the court. The first was that it would be unfair if GB had no recourse against the defendant merely because the defendant had chosen to contract out the running of Yarl’s Wood to an independent contractor, Serco. It would, he said, be undesirable to create an anomaly, whereby an IRC run by the defendant would give rise to a duty, whereas one that had been the subject of outsourcing, would not. In that regard, his submissions reflected paragraph 25(4) of the judgment of Lord Sumption in Woodland where he said:

“It is important to bear in mind that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable. The recognition of limited non-delegable duties has become more significant as a result of the growing scale on which the educational and supervisory functions of schools are outsourced, but in a longer historical perspective, it does not significantly increase the potential liability of education authorities.”

The same point was made at paragraphs 29-32 of the judgment of Baroness Hale in Woodland.

The final point raised by Mr McCullough QC is that it was fair, just and reasonable because, even if the day-to-day work was carried out by Serco, GB ought to still have the right to pursue the defendant and should not have to identify who was responsible for a particular function and/or a particular failure before commencing litigation. Of course, if the contract between the defendant and Serco has been properly drafted, the defendant would be able to recover any damages for which it may be liable from Serco or their insurers, pursuant to a contractual indemnity.

Ms Anderson’s submissions in relation to this aspect of the case amounted really to no more than this: that there was no proper reason why GB was not pursuing either Serco or the doctor in these proceedings. Since they were more directly responsible for what had happened, it was not just, fair and reasonable to impose potential liability on the defendant. I note that this submission, taken to its legal conclusion, would have defeated the existence of the non-delegable duty in Woodland.

In my view, the submissions put forward by Mr McCullough QC are to be preferred, and demonstrate why it is fair, just and reasonable for a duty to exist in this case. The out-sourcing should be irrelevant in law. Rather, it should not be for GB to have to try and work out which private contractor or individual doctor might be liable for which failure, and then litigate on the basis of that assessment. She was detained by the defendant; she was in the defendant’s control; she was entitled to look to the defendant for proper protection. If she did not receive it, the defendant was in breach of its duty. Accordingly, for all these reasons, I conclude that the imposition of a non-delegable duty in this case is fair, just and reasonable.

It is also worth undertaking something of a reality check at this point. The defendant decided to detain GB, and consequently had clear responsibilities for her treatment as a detainee as a result. It would not be just, fair or reasonable to conclude that those responsibilities disappeared simply because of an outsourcing decision.

Christina Morgan v Ministry of Defence [2010] EWHC 2248 (QB)

In Morgan, Supperstone J found that the defendant, who was responsible for the running of a Young Offender Institution at Stoke Heath, did not owe a non-delegable duty in respect of the negligence of the doctors who were not their employees, and who allegedly failed to recognise the extent and effect of the deceased’s mental health problems. In consequence of these problems, he hanged himself at the YOI, and the claim was brought by his dependants. Supperstone J found that the defendant did not owe a non-delegable duty to the deceased in respect of the performance of the doctors, because the doctors were not their employees.

The facts in Morgan are too close to the facts in the present case to be sensibly distinguished. For the reasons set out in Section 7 of this Judgment I have reached the view that the defendant owed a non-delegable duty to GB. That conclusion is at odds with the decision of Supperstone J in Morgan. Can those different results be rationally explained? In my view, they can, for the reasons set out below.

First, Supperstone J’s judgment came some years before the decision in Woodland. There can be no doubt that Lord Sumption’s judgment in that case has clarified what was an extremely confused area of the law. That is, I think, an important difference.

Secondly, this difference is exemplified by reference to Supperstone J’s own reasoning in Morgan. I have referred above to paragraph 24 of Lord Sumption’s judgment, in which he pointed out that Lord Phillips in A(A Child) was wrong to say that ‘control of the environment’ was an essential element in cases of non-delegable duty. On the contrary, as Lord Sumption pointed out, the defendant was not usually in control of the environment in which injury was caused by an independent contractor, which is why - as a general rule - he was not liable for the contractor’s negligence. A non-delegable duty arose in circumstances where the defendant was liable, not because he had control, but in spite of the fact that he may have had no control.

This passage is important for two reasons. First, it demonstrates that the clarification provided by Lord Sumption in Woodland was so far-reaching that it even extended to correcting a misassumption by Lord Phillips. Second, in Morgan, at paragraph 35 of his judgment, Supperstone J expressly relied on Lord Phillips’ analysis of control in A(A Child) as an integral part of his reasoning as to why there was no non-delegable duty of care in that case. In other words, Supperstone J’s reason for reaching the conclusion that he did in Morgan relied on the very feature which Lord Sumption has subsequently disavowed.

Thirdly, in his review of the authorities, Supperstone J said that “the hospital cases are to be distinguished” without explaining how or why he had formed that view. The hospital cases formed an integral part of Lord Sumption’s review and his conclusion that, in certain circumstances, a non-delegable duty did arise.

Fourthly, although Supperstone J dealt with the question of whether the duty was fair, just and reasonable, he did so in very short order. The points that were argued before me did not apparently arise before him, whilst the possible financial difficulties of the private provider, which was the same point argued in Morgan, was not a matter that was expressly raised before me at all.

Finally, I should say that it appears now to be accepted that this area of the law has moved on from the decision in Morgan. I was referred to the case of Amadou Nyang v G4S Care and Justice Services Ltd and Others [2013] EWHC 3946 (QB), where Lewis J noted that:

“…The 1st Defendant [G4S] is required by rule 33 of the Detention Rules to have a medical practitioner and a health care team responsible for the care of the physical and mental health of detained persons. The 1st Defendant arranged for that duty to be discharged by entering into arrangements with Dr Thomas, who in turn employed the 7th and 8th Defendants and others, to provide health care. In the light of that, the 1st Defendant conceded at the hearing that it is liable for any negligence on the part of the 7th and 8th Defendants as the duty to provide care for the physical and mental health of detainees is a non-delegable duty owed by the 1st Defendant to Mr Nyang: see Woodland v Essex County Council [2013] UKSC 66.”

Of course I accept that this was a concession of a non-delegable duty made by G4S, rather than a ruling to that effect. But Lewis J clearly endorsed the concession and expressly referred to both the Detention Rules and the decision in Woodland. If Morgan was still good law, then G4S would not have been liable for the negligence of the doctors: that indeed was the very issue which Morgan had decided.

For all these reasons, therefore, I conclude that, following the decision in Woodland, and on the basis of the arguments which were advanced before me, I am obliged to reach a different view to that of Supperstone J in Morgan. I find on the agreed facts of the present case, and as a matter of principle, that the defendant did owe GB a non-delegable duty of care.

The Crown Proceedings Act 1947

This subsidiary issue arose in an unsatisfactory way. In Morgan, Supperstone J found that he claim which the claimant sought to make in that case was outside The Crown Proceedings Act 1947 (“CPA”). Although he dealt with that issue before going on to consider whether or not there was a non-delegable duty, it seems to me that the issues more properly arise the other way round. The questions should be, first, whether there was a non-delegable duty and then, secondly, if there was, whether the CPA operated to prevent any liability on the part of the Crown in respect of that duty. Mr McCullough QC argued that, consciously or unconsciously, Supperstone J may have been influenced by his answer to the CPA issue when going on to find that there was no non-delegable duty.

On that basis, on the assumption that there was a duty (which is what I have found), it was for the defendant to show that the CPA operated to bar the defendant’s liability. Unhappily, the defendant was not really ready to do that and no authorities were cited to me other than Morgan. In the end, Ms Anderson appeared to rest her case on the assertion on this point, that Morgan was rightly decided.

Section 2 of the CPA provides as follows:

“2.— Liability of the Crown in tort.

(1)

Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:—

(a)

in respect of torts committed by its servants or agents;

(b)

in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and

(c)

in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property:

Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.”

Section 38, the interpretation section, defines “agent” as including “an independent contractor employed by the Crown”.

Mr McCullough QC’s submission was extremely simple. He said that, because s.2(1)(a) of the CPA extended the Crown’s liabilities to its servants or agents, including independent contractors as defined by s.38, that was sufficient to catch not only the defendant, but those engaged by the defendant, which would include for this purpose, Serco and/or the doctor. He noted that this argument did not arise in Morgan, where there was no reference to s.38 or the category of independent contractors. Instead the argument in Morgan focused on vicarious liability, which was of no application to that case (or this).

Ms Anderson said that clause 2(1)(a) would not apply to an independent contractor if the duty of care was a non-delegable duty of care of the sort that I have found. She was unable to explain how and why that limitation or exclusion could arise: it is certainly not within the words of the section.

It seems to me clear that, on the face of the words used, the defendant’s liability for an independent contractor is plainly caught by s.2(1)(a). That is what s.38 provides. That means that the CPA does not bar this claim. To the extent that Morgan suggests to the contrary, I find that that was because the independent contractor point was simply not taken before Supperstone J. If it had been, I conclude that the result would have been different.

Ms Anderson had an alternative argument that somehow sought to distinguish between the Crown, on the one hand, and the defendant, on the other. She said that an independent contractor was the agent of the defendant, but not the agent of the Crown. Given that the defendant is an emanation of the Crown, I am bound to say that I did not wholly follow this argument. No authority was cited in support of this purported distinction. To the extent that it sought to distinguish between the Crown and a governmental department of the Crown, it seemed to me to be wrong.

Although there was also an argument that s.(2)(3) and s.(2)(6) were also engaged by this claim, it did not seem to me that that argument added anything to the argument under s.2(1)(a). In the light of that, I decline to say anything further about that alternative submission.

Finally I should say this about the CPA. There was a suggestion in the judgment in Morgan, and a bold submission to that effect by Ms Anderson before me, that the purpose of the CPA was to limit the Crown’s liability in tort. I am not quite sure if that is right. The 1947 Act was designed to codify what had previously been a rather muddled area of the law, as to the circumstances in which a claimant could or could not issue proceedings against the Crown or its emanations. There is nothing in the preamble of the CPA to say that it was somehow concerned with limitation or exclusion. Furthermore, s.2 is designed to put the Crown in the same position as an ordinary private person of full age and capacity. Such a person would owe a non-delegable duty in the circumstances identified by Lord Sumption. So, too, in my judgment, does the Crown and therefore, in this case, the defendant.

Conclusions

For the reasons set out above, I would answer the first preliminary issue in the affirmative. In those circumstances the second preliminary issue adds nothing and does not require to be answered.

The parties have seen this judgment in draft in order to correct typographical errors. I will deal with all consequential matters, including costs, at a subsequent hearing, if they cannot be agreed.

Appendix 1

This is an agreed statement of facts for the purposes of the preliminary issue trial. The preliminary issue to be tried is as follows:

The facts set out below are confined to those considered relevant for the preliminary issue. Further undisputed facts may be ascertained from the pleadings: the factual background set out in the Particulars of Claim is largely admitted in the Defence. The names of the Claimant [GB] and the alleged father of her child [GA] have been anonymised pursuant to the Order of 17 March 2015.

The Claimant is a national of Nigeria, born on 15 September 1978.

The Claimant first arrived in the UK on 24 January 2010 on a six-month visa valid between 22 December 2009 and 22 June 2010. She claims that she returned to Nigeria prior to the expiry of her visa upon hearing the news that her husband and son had been killed. She says that while in Nigeria her deceased husband's family told her she must marry her husband's brother, who already had four wives. She states that she did not want to marry him and therefore returned to the UK in May 2010, while her visa remained valid and overstayed her visa.

While in the UK the Claimant became pregnant. She says the father is GA.

On 15 June 2012 the Claimant and GA were arrested by the police when arguing in the street. The Claimant was held overnight on 15 June 2012 under police powers. A risk assessment noted that the Claimant said she was pregnant, but did not have any mental health problems and was feeling ok. On 16 June 2012 the Claimant accepted a caution for criminal damage for grabbing GA and being reckless as to causing damage to a chain around his neck, which broke. GA was held and questioned by police regarding the domestic violence allegation and immigration offences.

The Claimant’s detention under immigration powers was authorised by the Defendant on 16 June 2012 at 19:30 while the Claimant was in police custody, with pregnancy noted as a risk factor in the Detention Authority. She was detained because she had overstayed her visa and the Defendant intended to remove her from the UK once a travel document was available.

The Claimant was held in the police station under immigration powers until 19 June 2012 when she was transported to Yarl’s Wood IRC.

Yarl’s Wood IRC is the Defendant’s immigration detention centre. The Defendant has contracted with Serco, a private company, to run Yarl’s Wood detention centre.

On 19 June 2012 at 23:30 after arrival at Yarl’s Wood the Claimant had a medical screening with a nurse.

On 21 June 2012 at 09.40 the Claimant was seen by Dr TG Inskip, a General Practitioner who is employed by a local GP surgery. Serco have a service level agreement with the GP surgery to provide cover at Yarl’s Wood IRC for two days per week. Dr Inskip conducted a Rule 34 Detention Centre Rules 2001 GP Assessment at the conclusion of which he prescribed the Claimant Mefloquine 250mg and she was given 4 tablets to be taken weekly.

On 27 June 2012 the Claimant claimed asylum and she had an Asylum Screening Interview the following day.

On 3 July 2012 the Claimant signed a medical disclaimer allowing health care staff at Yarl’s Wood to divulge details of her medical history to the Defendant, the Claimant’s legal representative and the Tribunal (Immigration and Asylum Chamber).

On 9 July 2012 the Claimant had her full asylum interview. The following day she was refused asylum and a decision to remove the Claimant from the UK was made, which she appealed.

From 11 July 2012 onwards the Claimant’s Home Office records and medical records from Yarl’s Wood document that the Claimant was hearing voices and exhibiting other signs of psychosis.

On 13 July 2012 she attended the nurse triage “complaining of hearing voices in her head.” A referral was made for a mental health assessment and for a GP to see her the following day.

On 14 July 2012 the Claimant’s medical notes record that she was seen by Dr Osho, a General Practitioner. The plan recorded was to have bloods taken and for the Claimant to be reviewed by the mental health team.

On 16 July 2012 Medical Justice arranged for her to be seen by Dr Jane Mounty, a consultant psychiatrist, who formed the view that the Claimant had a drug induced psychosis, triggered by Mefloquine, and that she was sectionable under the Mental Health Act and lacked capacity.

On 20 July 2012 a Registered Mental Health Nurse, Noel Fill, undertook a mental health assessment. He found that the Claimant was in an acute stage of psychosis and that she required assessment by a psychiatrist as soon as possible and that she may require assessment in a hospital. Following the assessment her medical notes record that she was prescribed Risperidone, an anti-psychotic drug.

On 26 July 2012 the Claimant was assessed by Dr Leahy, an NHS psychiatrist who provided specialist care at the IRC. Dr Leahy recommended that the dosage of Risperidone be increased and noted that the Claimant may need in-patient assessment.

On 27 July 2012 the Claimant was released from detention with residence and reporting requirements.