K v Secretary of State for the Home Department

In a negligence claim concerning harm inflicted by a third party, foreseeability of harm and knowledge of a grave danger do not, without more, establish a duty of care. The claimant must plead facts showing a sufficiently close relationship or special nexus with the defendant. This requirement remains distinct within the Caparo framework, particularly where the defendant is a public authority whose powers and responsibilities affect the public generally. A public authority does not become an insurer against general dangers created by persons whom it may control. A claim may be struck out where the pleading discloses no such nexus. Convention values do not require the common law to create a duty of care where Strasbourg jurisprudence accepts that the absence of proximity may lawfully preclude a negligence remedy.

The appellant alleged that the Secretary of State negligently released Rashid Musa from immigration detention and failed to deport him, despite knowing or being expected to know that he presented a grave danger to the public. Musa later raped the appellant.

The appellant sought pre-action disclosure, but Smith J considered that the proposed claim had little prospect of passing a strike-out application. Holland J subsequently struck out the claim as disclosing no reasonable cause of action, holding that the appellant was not sufficiently proximate to the Secretary of State. The central issue on appeal was whether grave and foreseeable danger, or the public authority’s control over Musa, could itself establish the required proximity and whether the claim should proceed to trial.

1. Appeal dismissed. The pleading did not disclose a sufficient nexus or special relationship between the appellant and the Secretary of State.
2. On a strike-out application, pleaded facts are assumed to be true. Where a claim challenges the exercise of a statutory discretion by a public authority and no statutory right to damages exists, the pleading must allege irrationality in the Wednesbury sense. That assumption does not prevent the court deciding that the pleaded facts disclose no duty of care.
3. In third-agency cases, where the immediate cause of the claimant’s harm is the act of another person or agency, the common law looks in principle for a special relationship between claimant and defendant. Foreseeability and knowledge of the danger do not themselves supply that relationship.
4. The appellant’s pleaded proximity connected the Secretary of State with Musa, the third agency, rather than with the appellant. That was insufficient. The Secretary of State did not become the world’s insurer against a general danger merely because the danger was appreciated.
5. Barrett v Enfield London Borough Council [1999] 3 WLR 79 did not require the claim to proceed to trial. It concerned a different situation in which proximity was not in issue and the principal question was whether it was fair and reasonable to impose liability. The present case was governed by the absence of any pleaded proximity.
6. The approach was consistent with Palmer v Tees Health Authority [2000] PNLR 87, which likewise did not require a comparable third-agency claim to proceed where proximity was not established.
7. The Convention arguments did not alter the result. The Strasbourg jurisprudence recognised that striking out a negligence claim for want of proximity could be compatible with article 6. The court therefore did not need to decide whether the pleaded facts engaged a positive obligation under article 3.

Arden LJ recorded reservations about Laws LJ’s wider observations concerning third-agency cases, pure economic loss, the empirical nature of the proposed antithesis, psychiatric damage, and the distinction between recognising a duty and limiting liability. Those observations did not affect the common basis for dismissal. Simon Brown LJ agreed with the reasons in paragraphs 24 to 32.

• Court of Appeal (Civil Division): The court dismissed the appeal from Holland J’s order of 3 May 2001 striking out the claim as disclosing no reasonable cause of action.
• High Court of Justice, Queen’s Bench Division: Holland J held that the pleaded facts did not establish proximity between the claimant and the Secretary of State and struck out the claim.
• Pre-action stage: Smith J refused pre-action disclosure on 28 July 2000 because the proposed action had very limited prospects of surviving a strike-out application.