Douce v Staffordshire County Council

Summary judgment is appropriate only in the clearest case. In a negligence claim against a statutory regulator, the court must have all substantial facts relevant to the allegations, with no real prospect that factual disputes or oral evidence will affect its assessment. Where statutory discretion and the existence or scope of a common-law duty depend on the precise nature of the decision and its factual setting, the issue is ordinarily unsuitable for summary determination. The statutory framework may also affect whether imposing a duty would inhibit proper performance of protective functions. The appeal was dismissed because the evidence did not establish a safe paper trial or a sufficiently clear case for summary judgment.

Mr and Mrs Douce owned and managed residential care homes regulated by Staffordshire County Council under the Registered Homes Act 1984 and the Residential Care Homes Regulations. They claimed damages for alleged negligent insistence, until October 1996, on staffing to the homes’ registered capacity rather than actual occupancy. The council applied for summary judgment under CPR 24.2, relying on statutory discretion and denying any relevant duty of care.

Mrs Justice Rafferty refused the application, holding that a duty of care was at least arguable and that issues of fact and interpretation required a trial. The council appealed. The central issue was whether the claim could safely and satisfactorily be disposed of on the papers.

1. Appeal dismissed. The council had not shown that the claimants had no real prospect of success or that there was no compelling reason for a trial. The criteria identified in S v Gloucestershire County Council [2001] 2 WLR 909 required the substantial facts to be before the court, the material facts to be undisputed or indisputable, and oral evidence to have no real prospect of affecting the assessment. Summary judgment should be confined to the clearest cases.

2. The statutory scheme left the adequacy of staffing to the council’s discretion. The principles stated in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 were material: conduct within the ambit of statutory discretion is not actionable in common law, although an exceptionally unreasonable decision outside that ambit may potentially give rise to liability. Where the discretion includes policy matters, the court cannot adjudicate on those matters. A common-law duty must also be consistent with, and must not tend to discourage, proper performance of the statutory functions.

3. The claim was fact-sensitive and unsuitable for summary disposal. The evidence did not provide a complete account of the council’s policy, its exercise of discretion, actual or expected occupancy, or the staffing levels reasonably required. The issues were mixed questions of law and fact, and oral evidence might affect the court’s assessment.

4. The possible conflict between a duty to avoid causing economic loss to care-home owners and the statutory duty to protect vulnerable residents was a significant issue for trial. The court declined to determine that developing question on incomplete evidence. The contract claim was no longer pursued; the realistic case was in tort.

Costs were ordered against the council in the sum of 90 per cent of the total sum as assessed.

• High Court, Queen’s Bench Division: Mrs Justice Rafferty refused the council’s application for summary judgment on 2 February 2001.
• Court of Appeal (Civil Division): the appeal was dismissed, with costs payable in the sum of 90 per cent of the total sum as assessed.