Pierce v Doncaster Metropolitan Borough Council

On an application for permission to appeal, permission should be granted where a proposed ground is properly arguable on the judgment and evidence. A court should be cautious before interfering with a first-instance judge’s credibility and factual findings, particularly where the judge saw the witness and relied on independent evidence. A proposed ground may be arguable where findings about the availability of statutory intervention, the lawfulness of returning a child to family care, and the likely alternative outcome appear inconsistent. A limitation issue is also arguable where the first-instance approach to the claimant’s knowledge may have required knowledge needed to plead the case, rather than the statutory test under the Limitation Act 1980.

The claimant alleged that a local authority negligently failed to take him into care, or to keep him in care, during his childhood. Mr Justice Eady found negligence in returning him to his parents at a rehabilitation unit in November 1977, awarded £25,000, and rejected other alleged breaches and the quantum challenge. He also held that limitation had not run, treating the claim as commenced in 2004.

The local authority renewed its application for permission to appeal. The proposed grounds concerned the 1977 return, later intervention, quantum, limitation, and the claimant’s credibility. The central questions were whether the findings on statutory intervention and the likely consequences of not returning the claimant were inconsistent, and whether the limitation issue was sufficiently arguable.

1. Disposition. The application for permission to appeal was granted in part. Permission was granted on grounds 1, 3, 4 and 5. Permission was refused on ground 2, concerning the claimant’s credibility.
2. The judge’s assessment of credibility was a pure fact-finding exercise. He reviewed evidence going both ways, had seen the claimant, and relied in part on matters established independently of the claimant’s evidence. There was no realistic prospect that the Court of Appeal would interfere with that assessment.
3. The challenge to the finding of negligence in returning the claimant to his parents at the rehabilitation unit was properly arguable. A return by a local authority might differ in practice from a subsequent application for a care order, because parents might accept continued accommodation but resist removal from the home. However, the statutory test for a care order remained the same. It was therefore arguable that the findings that a care order was not a viable option, that the return was negligent, and that the claimant would otherwise have remained in care throughout his minority were inconsistent.
4. The quantum ground was granted permission so that the appellate court could consider it, particularly in light of its conclusions on grounds 1 and 3.
5. The limitation ground was also arguable. The judge was not understood to have treated the defendant’s knowledge as relevant to section 14 of the Limitation Act 1980. Rather, he meant that the claimant did not know whether his condition was attributable to the alleged negligence until he knew what the local authority’s records disclosed. Nevertheless, the formulation that the claimant and his advisers needed knowledge in order to plead the case raised an arguable question about the proper statutory approach, in light of Nash v Eli Lilly & Co [1993] 1 WLR 782, Whitfield v North Durham Health Authority [1995] 6 Med LR 32, and Hallam-Eames v Merrett Syndicates Ltd [1995] 7 Med LR 122.
6. The alternative discretion under section 33 of the Limitation Act 1980 had not been decided below.

• Court of Appeal (Civil Division) — renewed application for permission to appeal; permission granted on grounds 1, 3, 4 and 5, and refused on ground 2.
• Queen’s Bench Division (Mr Justice Eady) — found negligence in the November 1977 return to the parents, awarded £25,000, rejected the other alleged breaches, and held that limitation had not run. The citation of that decision was not stated in the judgment.