K v Central & North West London Mental Health NHS Trust & Anor

On an application to strike out or obtain summary judgment, a claim in a developing area of negligence should proceed where it has a real, rather than fanciful, prospect of success and is not certain to fail. A statutory duty does not automatically exclude a concurrent common law duty of care. Whether such a duty exists depends on the statutory framework, the relationship and proximity between the parties, and whether imposing the duty is fair, just and reasonable. Clunis v Camden and Islington Area Health Authority did not establish an absolute bar to every negligence claim concerning Mental Health Act after-care. The Care Programme Approach guides the exercise of existing functions but does not itself create duties. An Article 2 claim based on post-detention care required a plea of gross negligence, whereas Articles 3 and 8 claims had an arguable factual and legal basis.

The claimant appealed against Master Eyre’s order striking out his re-amended claim and dismissing it under CPR 3.4(2)(a) and CPR 24.2. He alleged that the respondents negligently failed to appoint a competent care co-ordinator and to provide suitable supported accommodation while providing mental-health after-care, and that they breached Articles 2, 3 and 8 of the Convention.

The respondents argued that the pleaded services arose solely under section 117 of the Mental Health Act 1983 and that Clunis v Camden and Islington Area Health Authority conclusively excluded a common law duty. The central questions were whether the negligence claim was bound to fail, whether causation was hopeless, and whether each human-rights claim had no realistic prospect of success.

1. Appeal allowed in part. The order striking out the negligence claim and the Article 3 and Article 8 claims was set aside. The Article 2 claim was struck out. The negligence claim and the surviving human-rights claims were restored for trial.
2. For CPR 3.4(2)(a), the claim had to be certain to fail before strike-out. Under CPR 24.2, it was enough that the claimant showed a real prospect of success. A prospect could be real even if improbable. The pleaded case had to be assessed as pleaded; the claimant could not introduce an alternative case through submissions.
3. The claim was properly understood as alleging joint negligence in the performance of section 117 after-care functions. The Care Programme Approach supplied guidance on exercising existing duties and powers. It did not create an independent source of legal responsibility, but could inform the standard of care.
4. Clunis was distinguishable on its facts and did not impose an automatic rule that no common law duty could arise whenever section 117 services were involved. The alleged continuing relationship, reliance, vulnerability and known suicide risk were capable of establishing sufficient proximity. Whether it was fair, just and reasonable to impose the pleaded duty had to be determined after the facts were found at trial.
5. The causation case was arguable. The pleaded chain from appropriate staffing and accommodation to prevention or reduction of the risk of the claimant’s jump was supported by the disclosed social-work report. The Master’s conclusion that causation was hopeless was not reasonably open on the material.
6. The Article 2 claim was bound to fail. On the authorities considered, simple negligence was insufficient absent detention or gross negligence of the kind capable of sustaining manslaughter. The claimant pleaded neither gross negligence nor evidence capable of meeting that threshold.
7. The Article 3 claim raised a triable issue as to whether the claimant’s anguish crossed the minimum level of severity. The Article 8 claim was also more than arguable because the alleged impact on physical and moral integrity was not shown to be trivial. The precise order and costs were left for submissions.

• High Court (Queen’s Bench Division): allowed the appeal in part. The negligence, Article 3 and Article 8 claims were restored; the Article 2 claim remained struck out.
• Master Eyre: ordered the claim form and re-amended particulars of claim struck out and dismissed the action under CPR 3.4(2)(a) and CPR 24.2.