Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE NICOL
Between :
TBS | Claimant |
- and - | |
Metropolitan Police Commissioner | Defendant |
Heather Williams QC and Fiona Murphy (instructed by Bindmans LLP) for the Claimant
Peter Skelton QC and Emma-Louise Fenelon (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Defendant
Hearing date: 20th October 2017
Judgment
Mr Justice Nicol :
The Claimant was born in September 1985. His mother was a political activist who is referred to as ‘Jacqui’. His father was Bob Lambert. Lambert was an undercover police officer who, using the pseudonym Bob Robinson, pretended to share Jacqui’s political views and formed a liaison with her which resulted in the Claimant’s birth. It is pleaded that Lambert continued to fulfil (or purported to fulfil) a father’s role until late 1988 when he pretended that he had to leave to avoid prosecution. Thereafter the Claimant had no contact with Lambert until after 2012 when Lambert’s role as a police officer was revealed.
By these proceedings the Claimant seeks compensation for, among other things, the Adjustment Disorder with Depressed Mood which he says he has suffered as a result of finding out that his father was not a political activist but a police officer, from Lambert purporting to assume a father’s role under a false identity and from Lambert abandoning his parental role towards him relying upon a false explanation.
The claim is brought for misfeasance in public office and in negligence. The Defendant is the Metropolitan Police Commissioner as vicariously responsible (by virtue of Police Act 1996 s.88) both for Lambert himself and for the officers who were supervising Lambert and who, it is said, were at fault in deploying Lambert as they did and in allowing his role to continue after he had fathered a child.
The Claimant’s mother, Jacqui, brought her own claim in 2013 which was settled in 2014 for £425,000.
The present application is by the Defendant to strike out the claim in its entirety because, it is said, it discloses no legally recognisable claim against the Defendant. The Defendant invokes CPR r. 3.4(2)(a) and says the claim should be struck out because there are ‘no reasonable grounds for bringing … the claim’.
The Defendant relies on the witness statement of Melanie Jones dated 11th October 2017, but in truth this is one of the many applications made under r.3.4(2) where evidence is unnecessary – see Practice Direction 3A, paragraph 5.2. The Defendant can either sustain the argument that the claim discloses no reasonable cause of action by reference to the pleading alone, or she cannot.
The principles to be applied on a strike out application
There was no significant difference between the parties as to these principles which I can summarise as follows:
I must assume that the Claimant will be able to establish the facts pleaded in the Particulars of Claim – see for instance X v Bedfordshire County Council [1988] 2 AC 633 at 740H. Sometimes a strike out application is combined with an application for summary judgment. For the latter purposes the Court has to decide whether the Claimant has a reasonable prospect of making out his or her factual assertions. That is not this case.
A claim should only be struck out if it is certain to fail; Barrett v Enfield LBC [2001] 2 AC 550, 557 and Richards v Hughes [2004] PNLR 35.
In an area of law which is developing, it is not normally appropriate to strike out a claim. It is better that such development should take place on the basis of ‘actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purposes of the strike out.’ Ibid.
In what may be regarded as an example of the previous principles, the Court should be slow to strike out a claim in negligence at an early stage on the basis that the claimant has no prospect of demonstrating that it would be fair, just and reasonable to impose a duty of care unless the position is very clear. Such a question of legal policy is generally better decided at trial – James-Bowen v Commissioner of Police for the Metropolis [2016] EWCA Civ 1217 at [34]. (I was told that the Supreme Court has granted permission to appeal in that case, but, for the time being at least, the Court of Appeal’s decision stands).
However, ‘if the court is satisfied that the case as pleaded cannot succeed on established rules of law, even if developed in accordance with principle, it must say so and relieve the parties from the expense and inconvenience of being required to deal with a claim that cannot succeed.’ James-Bowen v Metropolitan Police Commissioner (above) at [14].
The Claimant’s pleaded case in misfeasance
The particulars of claim allege as follows:
‘[10] BL [i.e. Bob Lambert]’s actions as aforesaid amounted to a knowing or reckless abuse of the power entrusted to him as a public officer, which he knew was likely to cause the Claimant psychiatric injury, or was recklessly indifferent to this consequence.
Particulars of Misfeasance
BL abused his position as an undercover police officer to commence and continue a sexual relationship with the Claimant’s mother.
BL abused his position as an undercover police officer in representing himself to the Claimant as his father under his false identity and presenting a duplicitous account of the reason for his abandonment of the Claimant.
BL knew that he was not and/or could not lawfully have been authorised to commence a sexual relationship with Jacqui, to father a child with her, to fulfil a father’s role under his false identity and/or to present a false explanation for his abandonment of the Claimant or was reckless as to the same, and that doing so was in plain breach of his obligations as a police officer and such guidance that was or should have been given to him.
In the circumstances BL knew that his conduct as aforesaid was an abuse of his power as an undercover police officer or he was reckless as to the same.
The circumstances of the Claimant’s conception, early life and abandonment by BL carried with it an obvious risk that the Claimant would suffer psychiatric harm.
BL knew that the Claimant was likely to suffer psychiatric injury or was recklessly indifferent to this consequence.
The Claimant has suffered psychiatric injury as a result of BL’s misfeasance, as set out in paragraph 18 below [This was a reference to the Claimant’s Adjustment Disorder with Depressed Mood as supported by the report of Dr Warren, Consultant Psychiatrist].
[11] Further, in so far as any of BL’s supervising or managing officers or those responsible for his continued deployment knew or suspected that BL had fathered a child in the course of a sexual relationship entered into using his undercover identity, but allowed or facilitated him to continue in his undercover role behaving as described above, their actions also amounted to a deliberate or reckless abuse of their powers. Further, those officers must have known that BL’s conduct in relation to the Claimant was likely to cause him psychiatric injury or were recklessly indifferent to such harm occurring. As set out in paragraph 18 below, the Claimant has suffered consequential psychiatric injury.’
The ingredients of the cause of action of misfeasance in public office
Some of these are uncontroversial. Thus, the defendant must be a public officer and the conduct complained of must have been the exercise of power by the public officer. The conduct must also be either specifically intended to injure the claimant (targeted malice) or undertaken in the knowledge that the officer has no power to do the act complained of, or reckless as to whether that is the case (untargeted malice).
It is also agreed that the defendant’s malice must be accompanied by a degree of awareness of the consequences of the unlawful act. However, the precise nature of this requirement was a matter of debate between the parties and I shall return to this below.
The unlawful act must also result in loss to the Claimant. That element, too, was uncontroversial. Mr Skelton QC, for the Defendant, submitted that the defendant must further have foreseen that loss as a probable consequence of his actions. Ms Williams QC, for the Claimant, disputed this additional requirement, although it seems to me that this dispute was a reprise of the precise boundaries of the element of awareness of the consequences of the unlawful act.
Mr Skelton argued that there was a further requirement, namely that the Claimant had sufficient standing to sue. I understood Ms Williams to accept that, prior to his birth, the Claimant could have no cause of action. That is right, even for the period between conception and birth since a foetus, while still a foetus, enjoys no independent legal status and cannot sue – see Burton v Islington Health Authority De Martell v Merton and Sutton Health Authority [1993] QB 204 CA at p.226B. However, she argues that the Claimant does have standing to complain of matters which took place prior to his birth (or even prior to his conception) so far as those have affected his subsequent life. Mr Skelton accepted that was the case for the claim in negligence (see B v Islington Health Authority [1991] 1 QB 638, affirmed Burton v Islington Health Authority (above)), but he argued, as I understood, the position was different for the purposes of misfeasance. I can see no justification for such a difference. In Akenzua v Secretary of State for the Home Department [2003] 1 WLR 741 CA at [16] Sedley LJ gave the example of a public official who corruptly arranged the liberation of a man serving a sentence of imprisonment for terrorist bombings, knowing that he would resume his activities if he was allowed to do so. On his release (the example continued) the man placed a bomb in a public place and killed several people. The effect of the decision in Akenzua was that a claim in misfeasance could be maintained even where the predictable victim was neither an identifiable individual nor a member of an identifiable group of individuals. It would follow that in Sedley LJ’s example the claim could, in principle, be maintained. I agree with Ms Williams that the claim could also be maintained by the child of a woman, pregnant at the time of the bombing, where the child, at birth, was seriously injured as a result of the bomb. Damage is an essential ingredient of the tort of misfeasance in public office and so, in the adaptation of the example of Sedley LJ, the cause of action would not be complete until after the child was born. There may then be some delay between the wrongful act which is another ingredient of the tort and the completion of the cause of action by the suffering of damage, but that is not an unusual scenario.
The leading authority on misfeasance in public office is Three Rivers DC v Bank of England [2003] 2 AC 1. As is well known, that litigation arose out of the collapse of Bank of Credit and Commerce International (‘BCCI’). The Plaintiffs alleged that the Bank of England was liable in misfeasance because it had wrongly granted a licence to BCCI or it had failed to revoke BCCI’s licence when it knew or suspected that it would probably collapse without being rescued. Clarke J. at first instance and the Court of Appeal struck out the claim. The plaintiffs appealed to the House of Lords. There were two hearings in the House of Lords. In the first the House commented on the elements of misfeasance. It also rejected a claim based on European law (which is not material to the present matter). It referred the appeal back for further argument on the factual aspects of the claim. Following that second hearing, the appeal was allowed and the cross-appeal dismissed.
I will focus on what was said about the necessary mental element of the defendant and, in particular, the mental element concerning knowledge of loss which would follow from the unlawful act. I will begin with passages from the first judgement of the House.
At p.191E Lord Steyn addressed the necessary state of mind of the defendant. He referred to targeted malice (not relevant here) and then said
‘The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful.’
At p. 192C-D he said,
‘the basis for the action lies in the defendant taking a decision in the knowledge that it is likely to cause damage to an individual or individuals.’
He added at p.192G,
‘It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form [viz untargeted malice].’
Later in his speech Lord Steyn considered the question of damage and remoteness. He said at p.195D-E,
‘Taking into account all the matters advanced the choice before the House can be narrowed down. So far as the majority [in the Court of Appeal] was minded to adopt a stricter test that Clarke J encapsulated in the words “knowing at the time that [the decision] would cause damage to the plaintiffs”, they went too far. A test of knowledge or foresight that a decision would cause damage does not fit into the standard of proof generally required in the law of tort, and specifically in the case of intentional torts. Moreover this test unnecessarily emasculates the effectiveness of the tort. The real choice is therefore between the test of knowledge that the decision would probably damage the plaintiff (as enunciated by Clarke J) and the test of reasonable foreseeability (as contended for by counsel for the plaintiffs).’ [emphasis in the original]
Lord Steyn gave his conclusion to this issue at p.195H-196D when he said,
‘Enough has been said to demonstrate the special nature of the tort, and the strict requirements governing it. This is a legally sound justification for adopting as a starting point that in both forms of the tort the intent required must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs. This results in the rule that a plaintiff must establish not only that the defendant acted in the knowledge that the act was beyond his powers but also in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member. In presenting a sustained argument for a rule allowing recovery of all foreseeable losses, counsel for the plaintiffs argued that such a more liberal rule is necessary in a democracy as a constraint upon abuse of executive and administrative power. The force of this argument is, however, substantially reduced by the recognition that subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient. Recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not, is therefore sufficient in law. This justifies the conclusion that the test adopted by Clarke J. represents a satisfactory balance between the two competing policy considerations, namely enlisting tort law to combat executive and administrative abuse of power and not allowing public officers, who must always act for the public good, to be assailed by unmeritorious actions.’
Lord Hope and Lord Millett gave speeches which agreed with Lord Steyn.
Following the further argument, the leading speeches were given by Lord Hope and Lord Hutton with whom Lord Steyn concurred. Lord Millett and Lord Hobhouse dissented.
Ms Williams refers me to [44] where Lord Hope said,
‘the allegation is that this is a case of what is usually called “untargeted malice”. Where the tort takes this form the required mental element is satisfied where the act or omission was done or made intentionally by the public officer (a) in the knowledge that it was beyond his powers and that it would probably cause the claimant to suffer injury, or (b) recklessly because, although he was aware that there was a serious risk that the claimant would suffer loss due to an act or omission which he knew to be unlawful, he wilfully chose to disregard that risk. ...’
Lord Hutton restated the essential ingredients of the tort at [121] one of which was
‘(4) that the public officer knew that his act or omission would probably injure the plaintiff or was reckless as to the risk of injury to the plaintiff.’
Lord Hutton returned to this ingredient at [127] – [129] where he said,
‘[127] The fourth element which the plaintiff must prove to establish the tort is that the public officer knew that his act or omission would probably injure the plaintiff or was reckless as to the risk of injury to the plaintiff. Mr Stadlen [counsel for the Bank of England] submitted that the judgments of the House after the earlier hearing established that to prove recklessness the plaintiff must not merely establish that the officer was aware that there was a risk of injury to the plaintiff but that he believed or suspected that his act or omission would probably injure the plaintiff and was recklessly indifferent to that probable injury. Mr Stadlen further submitted that in pleading recklessness in a number of places in the particulars of claim the plaintiffs had failed to plead that the Bank believed or suspected that its act or omission would probably damage the plaintiffs and was recklessly indifferent to that injury and merely pleaded that the Bank “wilfully disregarded the risk of the consequences or was recklessly indifferent to the consequences”: see for example the last four lines of paragraph 33.1 which I have set out above.
[128] Having expressly pleaded that “the Bank further knew that the likely consequences were that the depositors would suffer losses” the plaintiff then pleaded “or the Bank wilfully disregarded the risk of the consequences or was recklessly indifferent to the consequences”, and in my opinion the distinction between so pleading and pleading that the Bank believed or suspected that its acts or omissions would probably damage the plaintiffs and was recklessly indifferent to that probable injury is such a fine one that an argument based on that distinction cannot constitute a ground for a strike-out under r.3.4(2)(a). ….
[129] In the present case where the plaintiffs plead that the Bank knew that the likely consequences were that depositors and potential depositors would suffer loss and then, in the alternative, plead recklessness, I do not consider that the omission to plead in the context of recklessness that the Bank believed or suspected that injury was likely could prejudice the Bank.’
I return to the dispute between the parties in the present case as to the sufficiency of the pleading. Mr Skelton argues that in paragraph 10(f) of the Particulars of Claim it is insufficient for the Claimant to establish that ‘BL knew that the Claimant was likely to suffer psychiatric injury or was recklessly indifferent to this consequence.’ The Claimant must show that psychiatric injury was known to be a probable consequence of this operation, not merely a likely consequence.
I do not accept this submission for the following reasons:
As I have shown, at p. 192 Lord Steyn himself used the expression ‘likely to cause damage to an individual or individuals’ as a test of liability.
Again as I have shown, after the second hearing Lord Hope at [44] spoke of the alternative of recklessness being established by proof that the defendant was aware of a ‘serious risk that the plaintiff would suffer loss’ and wilfully disregarding that risk. And Lord Hutton at [127] – [129] accepted that the pleading of reckless indifference to the risk identified and pleaded was sufficient.
Mr Skelton relied on certain passages in Akenzua v Secretary of State for the Home Department (see above) for instance, where Simon Brown LJ said at [30],
‘To commit the tort of misfeasance otherwise than by way of targeted malice, the tortfeasor must be proved to have acted with subjective, reckless indifference both as to the illegality of his act and as to the probability that harm will result from it.’
However, there are two difficulties with this argument. Firstly, and most importantly, I do not understand Simon Brown LJ as having intended to do more than shorten into a pithy phrase the longer and more detailed reasoning of the House of Lords. Secondly, in the immediately following paragraph [31] he said,
‘At the heart of the defendants’ argument that harm must be likely to result to some particular person or class of person is that misfeasance is a tort of intention and that even where the case is not one of targeted malice the tortfeasor must still have intended harm to his victim. [my emphasis].’
In my judgment, if there is a difference between the pleaded cause of action in this regard and the ratio of Three Rivers, it is too subtle to justify striking out the claim in misfeasance.
The Defendant’s remaining challenges to the claim in misfeasance
Mr Skelton argues that the Claimant does not have a viable cause of action in misfeasance bearing in mind the following in particular:
Lambert’s operation was an undercover one. It was of the essence that it should remain secret. Yet, the Claimant’s injury depends on the revelation of Lambert’s true role.
Lambert left Jacqui when the Claimant was no more than 3 years old. The report of Dr Warren says that the Claimant had no memory of his father prior to his departure. Dr Warren also says that for some time the Claimant believed his step-father was his biological father. It was only some years after his step-father’s death that he found out this was not the case. It was years after Lambert had left, that the Claimant’s grandfather had told him of Lambert’s supposed political activities. 27 years after Lambert left, the Claimant’s mother read a newspaper article which spoke of his true role and it was this which was supposed to have triggered the Claimant’s psychiatric injury. However, Mr Skelton submits, that concatenation of events is too complex, too indirect, too distant in time from the events in 1985 to give rise to liability in misfeasance.
The complaint that Lambert abandoned the Claimant and his mother has inherent and insuperable problems:
The essence of the Claimant’s case is the deception practised by Lambert on Jacqui. That would not have been helped by Lambert remaining in place as the Claimant’s father. Arguably, it would have made matters worse.
There is no private law duty on parents to be good parents. There are situations where the state may intervene to take a child away from a bad parent or otherwise control parenting in the child’s best interests, but there is no warrant for the child having a private cause of action (whether in negligence or misfeasance) because of the poor quality of parenting.
The first two complaints seem to me to founder on the first of the strike out principles which I identified above. Because this is a strike out application and not an application for summary judgment, I must assume that the Claimant will be able to prove the truth of the pleaded facts. As I have said, the Claimant has pleaded in paragraph 10(e) and (f) that:
‘(e) The circumstances of the Claimant’s conception, early life, and abandonment by BL carried with it an obvious risk that the Claimant would suffer psychiatric harm.
BL knew that the Claimant was likely to suffer psychiatric injury or was recklessly indifferent to this consequence.’
In the course of the hearing I put to Mr Skelton that there was an old adage that the truth would out and therefore it could not be assumed that a secret operation would remain a secret. He replied that, while that was possible, it was not probable. On reflection, this is all beside the point, since I must consider the defendant’s application on the basis that the pleaded averments are true. I have already said that I would not strike out the pleading because it uses the word ‘likely’ rather than ‘probable’. Three Rivers also allows for the possibility that the defendant may have been recklessly indifferent to the harm which the Claimant suffered.
The Claimant was aware that his claim was not issued until 24th February 2017. The particulars of claim anticipated an attack on the grounds that it was barred by limitation – see paragraphs 22–27. It is sufficient for me to note that the basis of the present application is not founded on an argument that the claim is hopeless because of the Limitation Act.
As to Mr Skelton’s third complaint, there is I think force (at least as regards paragraph 10 of the particulars of claim) in Ms Williams’s reply that it is wrong to divide up the Claimant’s complaint into three periods: pre-conception, conception to birth and birth to Lambert’s abandonment of the family. Mr Skelton is right that the essence of the Claimant’s claim is the deception which was practised by Lambert, but that deception ran through the entire operation and it is artificial to divide it into those different periods. As I read the particulars of misfeasance in paragraph 10, that is how the Claimant puts his case.
It is not, then, necessary for me to deal with another argument by Ms Williams. She submitted that it is not necessary that the defendant contemplates the precise victim of his unlawful conduct; it is sufficient if he is aware that a person will suffer loss of that particular type or is reckless as to whether such loss will be suffered. It would, therefore, be sufficient if the defendant realised that the unlawful conduct would cause psychiatric harm to, say, Jacqui. Akenzua may support such a proposition. But it does not help the present claimant. His particulars of claim (as I have shown) allege that Lambert knew or was reckless as to the psychiatric injury to the claimant in consequence of his unlawful act (see paragraphs 10(e) and (f)) and the pleading in relation to the supervising officers again alleges that they knew or were reckless as to the harm which the claimant was likely to suffer. Thus, the particulars of claim do not rely on knowledge or recklessness as to injury to someone else in the alternative.
Paragraph 11 is more difficult. This does proceed on the premise that BL’s supervising or managing officers
‘knew or suspected that BL had fathered a child in the course of a sexual relationship entered into using his undercover identity’.
It then claims that those officers ‘allowed and/or facilitated [Lambert] to continue in his undercover role behaving as described above’ and that those actions amounted to a deliberate or reckless abuse of power. Thus, the allegations in paragraph 11 would appear to be confined to events after the Claimant’s birth.
It seems to me that Mr Skelton is entitled to say that, once Lambert had fathered a child, the dye was cast. Indeed, Dr Warren’s report, which is incorporated into the particulars of claim in paragraph 18 said (at p.11),
‘I believe that TSB has suffered from an Adjustment Disorder with Depressed Mood, coded 309.0 under the Diagnostic and Statistical Manual of Mental Disorders (DSM IV), as a result of the discovery of his father’s true identity. He has responded previously to events in his life, such as the death of his step-father and mother’s partner leaving the family, with disturbed behaviour in the past, and he clearly is sensitive to losses in his personal life. The discovery that his father is not and never was the Animal Liberation Anarchist persona that he had built up in his own mind represents another loss to him, and I think again explains his reaction to the discovery of his true identity.’
There is not, so far as I can see, in Dr Warren’s report support for the proposition that the Claimant’s Adjustment Disorder was caused or exacerbated by what had happened subsequent to Lambert fathering the Claimant and on the premise that that event had already taken place.
In consequence, as it stands, I do not think that paragraph 11 is sustainable. I will entertain further written submissions on what course I should adopt in consequence. The choice may be between simply striking out the paragraph or giving the Claimant a limited opportunity to amend this part of his claim, if he so wishes.
The claim in negligence
The Particulars of Claim allege as follows:
‘[12] The Defendant’s officers, servants and agents knew or ought to have known that there were obvious risks that a child would be conceived in the course of fraudulent sexual relationships entered into by BL whilst undercover and that harm would be caused to any child conceived in those circumstances. In all the circumstances it is fair, just and reasonable to impose a duty of care on the Defendant’s officers, servants or agents to take reasonable steps to prevent BL from conceiving a child within such a relationship, to prevent BL from purporting to assume a father’s role under a false identity in relation to any such child, to prevent BL from abandoning his parental role in relation to any such child, relying upon a false explanation and causing harm. In particular, the following facts and matters justify the imposition of a duty of care:
The Defendant’s officers, servants or agents elected to place BL in an undercover deployment a key feature of which was commencing and maintaining personal relationships with individuals on whom he was spying or from whom he was trying to obtain information or contacts. The very nature of the undercover operation gave rise to a foreseeable risk that BL would abuse the position his false identity gave him and unnecessarily intrude into the private lives of those individuals, including by way of sexual relationships, whether for the purpose of obtaining information, maintaining his cover or for his own personal gratification.
The formation of a sexual relationship in those circumstances carried with it the obvious attendant foreseeable risks that BL would father a child in the course of a sexual relationship, that BL would misrepresent his identity to a child conceived in such circumstances and/or misrepresent the reason for his abandonment of such a child at the point of extraction.
BL’s undercover deployment as an animal rights activist extended over 5 years and his relationship with Jacqui extended over 3 years. The risk of BL abusing his position and the attendant risk that he would father a child increased the longer he was deployed and the long[er] his sexual relationship with Jacqui continued.
In all the circumstances, the onus was on the Defendant to ensure that there was no abuse by BL of his position, including the formation of a sexual relationship while undercover, the conception of a child in the course of such a relationship, the misrepresentation of his identity to such a child and/or the misrepresentation of the reason for the abandonment of such a child at the point of extraction.
In all the circumstances, the Defendant assumed responsibility for the protection of the Claimant from injury resulting from abuse by BL of his position as an undercover police officer, the risk of which was foreseeable.
The imposition of a duty of care on the Defendant and the steps which the Defendant was required to take are not unreasonable or onerous in the context of undercover policing operations. It is essential for the safety of such operations, of the officers conducting them, of the targets of them and those who suffer collateral intrusion as a result, that undercover officers are intensively managed and supervised: this is clear from RIPA and the Code of Practice for Covert Human Intelligence Sources issued pursuant to s.71 RIPA. The imposition of a duty of care is no more than a reflection in tort law of the statutory obligations which are already imposed on the Defendant.
[13] the deployment of BL as an undercover officer to infiltrate the life of the Claimant’s mother and subsequently his life, without his knowledge, created a foreseeable risk that the Claimant would suffer harm. The Claimant was unable to protect himself from that risk which was entirely unknown to him. Accordingly, the Defendant assumed responsibility to take all reasonable steps to protect the Claimant from foreseeable harm. In the premises, the Defendant owed the Claimant a duty of care to take reasonable steps to prevent BL from conceiving him under his undercover identity, to prevent BL from purporting to assume a father’s role under a false identity in relation to him and/or to prevent BL from abandoning his parental role towards him, relying upon a false explanation and causing harm.
[14] [pleads breaches of the duty of care]
[15] Further or in the alternative, BL owed the Claimant a duty of care to take reasonable steps to prevent his conception in the context of a fraudulent relationship with his mother, to avoid purporting to assume a father’s role under a false identity in relation to him and/or to avoid abandoning that parental role relying upon a false explanation. In breach of that duty… It was foreseeable that the Claimant would suffer psychiatric harm.’
Negligence: A Wrongful Life claim?
The Defendant argues that the claim regarding the Claimant’s conception cannot succeed because, if he had not been conceived he would not be alive. In effect, Mr Skelton argues, this is a ‘wrongful life’ claim, but such claims are contrary to public policy. That was the decision in McKay v Essex Area Health Authority [1982] 1 QB 1166 CA. The Court gave two reasons for its decision. The first was that such a claim would be contrary to the principle of the sanctity of human life – see for instance Ackner LJ at p.1188C. The second reason was a practical one. The plaintiff was a child whose mother had contracted rubella while she was pregnant. The plaintiff alleged that the doctors had been negligent in not identifying his mother’s condition and said, that, if it had been, he would have been aborted. The plaintiff could give evidence of his condition with the congenital deformities from which he suffered as a result of his mother’s illness. But the logic of his claim was that this had to be compared with the position if the doctors had not been negligent. In those circumstances, he would not have been born. Yet there was no way the court could assess non-existence or put a value on it.
Ms Williams argues that the comparison with McKay is inapt. The Claimant does not say he should never have been born. Rather he seeks compensation for the psychiatric injury which he has suffered as a result of the deception practised on his mother and on him about his father’s circumstances. Such a claim does not offend the principle of the sanctity of life. Nor does it engage the same practical difficulties as existed for the plaintiff in McKay. She observes that the child plaintiff in McKay had an alternative claim for failure to treat the mother’s rubella. Such treatment, it was said, could not have reversed or ameliorated damage already done to the unborn child, but it could have reduced the likelihood of further damage. At 1185B-C Ackner LJ said,
‘It has not been contested that if the facts set out above are established, Mary has an arguable cause of action against the doctor. In fact, without it being in terms conceded, it was assumed on those facts she would indeed recover damages.’
McKay was decided after the Congenital Disabilities (Civil Liability) Act 1976 had been passed, but Mary’s birth had occurred before the Act was passed and, as such, the Act had no application – see 1976 Acts.4(5). Although the present claimant was born after the commencement of the 1976 Act, both parties in the present case agree that that Act has no bearing on the issues which I have to decide.
On this issue I agree with Ms Williams. I note that in McKay the plaintiff had sought to argue that she, too, was seeking compensation for the pain, suffering and expense of living with her disabilities. However, as Ackner LJ said at p.1189C,
‘She cannot say that, but for [the doctor’s] negligence, she would have been born without her disabilities. What the doctor is blamed for is causing or permitting her to be born at all.’
I agree that that is not the present Claimant’s position. He is not aggrieved at having been born, but he does complain that the circumstances of his father mean that he has suffered the Adjustment Disorder which Dr Warren identified.
Negligence: an arguable duty of care?
The particulars of claim plead that the Claimant has suffered psychiatric harm as a result of the behaviour of Lambert (and his supervising officers) and that such loss was reasonably foreseeable. Mr Skelton argues, as above, that it was not reasonably foreseeable that Lambert’s true identity would be revealed since it was a covert operation and intended to remain secret, nor was it reasonably foreseeable that the Claimant would suffer psychiatric injury if he did learn of Lambert’s true identity. However, as I have already said, I must decide this application on the assumption that the pleaded facts are true. Ms Williams also argues that this is particularly important here because the defendant declined to provide any pre-action disclosure. That’s as may be, but it is not strictly germane. The Claimant has pleaded that his loss was reasonably foreseeable. I must assume that is true.
Mr Skelton referred me to James-Bowen v Metropolitan Police Commissioner (above) at [43]- [44] where the Court had rejected the Claimant’s case based on reasonable foreseeability. However, in that case the defendant’s application was both to strike out the claim on the ground that it disclosed no reasonable cause of action and for summary judgment on the grounds that it had no reasonable prospect of success. In these paragraphs, the Court of Appeal was dealing with an appeal from Jay J.’s decision that a particular aspect of the Claimants’ claim had no realistic prospect of success – see [43]. It is of no help to the Defendant in the present case since she has not sought summary judgment.
Reasonable foreseeability is one limb of the three-part test for establishing a duty of care in Caparo Industries plc v Dickman [1990] 2 AC 605. Another is that it must be fair, just and reasonable to impose the relevant duty of care in the circumstances. Mr Skelton argues that it would not be fair, just or reasonable to impose a duty of care in the present circumstances. Lambert’s supervising officers could not assume the kind of responsibility for the Claimant’s welfare for which he is contending. Whether the focus is on the supervising officers or Lambert, it would be unreasonable to impose a duty of care regarding the parenting of a child. That would constitute an exceptional interference in the parent/child relationship. It would also be unworkable. Parents leave their children often. It would not be right to make such actions subject to a duty of care in private tort law.
Mr Skelton is right that the courts are cautious about imposing duties of care for the purpose of the tort of negligence on parents towards their children – see for instance Surtees v Kingston-upon-Thames Borough Council [1991] 2 FLR 559, especially Beldam LJ at p.581 and Sir Nicolas Browne-Wilkinson VC at p.583-4.
Ms Williams reminds me that a claim should only be struck out if it is certain to lose and, as already noted, where the issue is whether the imposition of a duty of care would be fair, just and reasonable caution is needed because such questions are laden with policy considerations. She argues that this is not one of those situations where I can, at this stage, say with the necessary certainty that the defendant will be successful.
She reiterates that the claim in negligence embraces the whole course of conduct of Lambert and, for the purpose of the claim in negligence, the same is true of the claim based on the duty of care said to be owed by Lambert’s supervising officers. Running through those claims is the deception as to Lambert’s role, a duplicity which, the pleading says was unlawful. Thus, the complaint about Lambert abandoning him and his mother Jacqui cannot be separated from the deception which was used at the beginning of Lambert’s relationship with Jacqui, the circumstances which led to the Claimant’s conception and Lambert’s role in parenting the Claimant in the early years of his life. All of this, Ms Williams argues, means that the present is a very different case from others which might simply allege deficient parenting. I agree with Ms. Williams.
Mr Skelton also submits that the negligence claim must fail so far as it relates to the way in which Lambert performed his role as a father or the circumstances of his departure because, according to Dr Warren, the claimant has no memory of Lambert from his childhood. According to Dr Warren, the Claimant’s psychiatric injury arose not from anything which took place between the Claimant’s birth in 1985 and Lambert’s departure in 1988, but from the trauma which the Claimant suffered in 2012 on finding out that his father was actually a police officer. That, too, seems to me to miss the point which the Claimant is making. It is the whole deceptive course of conduct from Lambert’s sexual liaison with Jacqui through the Claimant’s birth, his father’s contact with him in his early years and then abandonment, all of which were based on a fiction which is said to have triggered the Claimant’s Adjustment Disorder when he learned the truth. At trial the accuracy of these assertions can be tested, but it does not seem to me that there is anything factually incoherent in them or that, if proved, the pleaded duty of care must inevitably fail. Accordingly, it would not be justifiable to strike the claim out now.
Mr Skelton argues that the supervising officers could not possibly be said to have assumed the kind of responsibility for the Claimant’s welfare for which he is arguing. But ‘responsibility’ in this context means potential liability to pay compensation for harm caused if the duty of care is broken. If the Claimant makes good his pleaded case, it seems to me far from certain that he should fail in his contention that the supervising officers also owed him a duty of care and should compensate him for harm that he has foreseeably suffered if that duty is broken.
Conclusion
With one qualification, the Defendant’s application is dismissed.
The qualification relates to paragraph 11 of the particulars of claim. For the reasons which I give in [32] – [35] above I do not consider that part of the claim is sustainable. From the time that this decision is circulated in draft, I will give the parties 7 days to make written submissions as to what course I should adopt in relation to that matter and what further, if any, orders I should make.