Skipper v Calderdale Metropolitan Borough Council & Anor

A negligence claim arising from failure to identify and support dyslexia should not be struck out under CPR 24.2 merely because proof of loss is difficult or likely damages are modest. General damages may be recoverable where the disability has had a real effect on the claimant’s ability to cope with school or work, or has significantly interfered with enjoyment of life; mere distress or upset is insufficient. A claimant may also have a real prospect of proving loss of earning capacity despite uncertainty about educational outcomes and career path. Proportionality, complexity and cost require rigorous case management, but cannot displace the real-prospect threshold.

The appellant brought negligence claims against the local education authority and the governors of her former school, alleging failures to identify and support her dyslexia. She claimed general damages for humiliation, loss of confidence and loss of self-esteem, together with loss of future earnings and earning capacity.

The High Court accepted that the alleged breaches were not hopeless but struck out the claim under CPR 24.2, holding that the appellant had no real prospect of proving recoverable loss. There was no appeal against the findings concerning breach of duty. The central issue before the Court of Appeal was whether the evidence gave the claim a real prospect of establishing general damages or some loss of earning capacity.

Appeal allowed. The Court of Appeal, comprising Latham LJ, Hallett LJ and the President of the Queen’s Bench Division, approached the damage issues on the assumption that the alleged breaches of duty would be established.

1. General damages. The reasoning in E (a minor) v Dorset County Council [1995] 2 AC 633, as adopted and applied in Phelps v London Borough of Hillingdon [1998] ELR 38 and upheld by the House of Lords in Phelps [2001] 2 AC 619, supported recovery in principle for the consequences of a failure to diagnose and ameliorate dyslexia. Mere distress or upset at school was insufficient. However, where the disability had a real effect on the claimant’s ability to cope with school or work, or significantly interfered with enjoyment of life, the resulting loss of amenity could sound in damages. The pleaded humiliation, loss of confidence and loss of self-esteem therefore required consideration at trial.
2. Loss of earning capacity. The evidence involved substantial speculation about the extent to which dyslexia could have been ameliorated, the effect on examination results and the claimant’s subsequent career. Those uncertainties did not justify concluding at the summary stage that no loss, however modest, could be proved. The claim therefore had to proceed to trial.
3. CPR 24.2 and proportionality. A claim with a real prospect of success cannot be struck out merely because it is complex or difficult, or because its monetary value is modest and litigation may be disproportionate. The appropriate response was rigorous case management to control expense and ensure expedition and fairness.

The appeal was allowed, save that the allegations identified in paragraphs 6 and 9 of the judgment were struck out. The case was to be listed before Judge Hawkesworth within one month, or such further time as he considered appropriate, for proportionate case management.

1. Court of Appeal (Civil Division). On 15 March 2006, the court allowed the appeal: [2006] EWCA Civ 238.
2. High Court of Justice, Queen’s Bench Division. On 17 December 2004, HHJ Hawkesworth QC, sitting as a deputy judge of the High Court, struck out the claim under CPR 24.2 after holding that the alleged breaches were not hopeless but that recoverable loss had no real prospect of being established.