G, R (on the application of) v The Legal Services Commission

For funding purposes, negligence by omission may amount to “serious wrongdoing” by a public authority without being deliberate, malicious or dishonest. The assessment concerns the quality of the alleged acts or omissions in their context, rather than the pleaded cause of action. Relevant considerations include the nature and purpose of the duty, the quality of the breach, the harm or risk of harm, and the public dimension of the duty and breach. The funding authority must distinguish genuinely simple negligence from gross or serious negligence. It must not treat deliberate, malicious or dishonest conduct as the exclusive test.

The claimant sought judicial review of the Legal Services Commission’s refusal to fund preliminary enquiries and proposed negligence and breach of statutory duty proceedings against a local authority. The proposed claim alleged that social services repeatedly failed to protect a child despite warnings that he posed a danger to himself and others, after which he suffered serious injuries.

The Commission treated the claim as involving negligently caused injury excluded by Schedule 2 to the Access to Justice Act 1999. It also concluded that the alleged omissions did not constitute serious wrongdoing under the Lord Chancellor’s direction and section 8 of the Funding Code. The central issue was whether the Commission had applied the correct legal test.

1. The claim succeeded. The Commission’s decision was quashed and the application was remitted for reconsideration. The Commission was granted a significant margin of appreciation, but it had misdirected itself in law.
2. The direction under section 6(8) of the Access to Justice Act 1999 was concerned with the quality of the alleged act or omission in the context of the duty owed and the circumstances of its breach. It was not concerned with identifying a separate cause of action called serious wrongdoing or abuse of position.
3. Negligence by omission could amount to serious wrongdoing. Such an omission did not have to be deliberate, malicious, dishonest, or close to any of those qualities. A public authority entrusted with responsibilities essential to public health or safety might commit serious wrongdoing through an inadvertent but grossly negligent dereliction of duty.
4. The relevant assessment included:
   1. the nature of the duty owed;
   2. the purpose of the duty, including the persons or class protected;
   3. the quality of the alleged acts or omissions and the circumstances in which they occurred;
   4. the harm or risk of harm caused by the breach; and
   5. the public dimension of the duty and breach, including the funding priority involved.
5. The Commission had repeatedly assessed the claim by comparison with deliberate, malicious or dishonest conduct. Its use of “simple negligence” was potentially misleading because it had not identified the quality of negligence capable of amounting to serious wrongdoing. On the assumed facts, repeated failures over more than two years to act on warnings concerning a child’s safety could potentially satisfy the test.
6. The question at the funding-scope stage was distinct from the ultimate merits of the proposed claim. Causation, public policy and the ability of the local authority to disprove the allegations were matters for later consideration.

Costs were to be subject to detailed assessment if not agreed. Permission to appeal was granted.

First-instance judicial review decision. The judge granted permission to appeal to the Court of Appeal on the basis that the issue was of sufficient public importance.