Trent Strategic Health Authority (Respondents) v Jain and another (Appellants)

A public authority exercising a statutory power to protect a specified class does not ordinarily owe a common law duty of care to persons whose conflicting economic interests may be harmed by its exercise. Such a duty could inhibit achievement of the statutory purpose.

Nor does an opposing party owe a duty of care concerning the preparation, commencement or conduct of judicial or quasi-judicial proceedings. Protection against harm caused by litigation must generally be found in the court’s control, procedural rules and available remedies. Inadequate statutory safeguards do not justify creating a negligence duty.

Applications made without notice, especially for draconian orders, should nevertheless be exceptional. A judge should require notice, including informal notice where practicable, unless urgency or another compelling reason makes it impossible or inappropriate.

The appellants owned a registered nursing home. The health authority applied under section 30 of the Registered Homes Act 1984, without notice, for immediate cancellation of its registration. A magistrate granted the order, the residents were removed and the business was irreversibly damaged.

The Registered Homes Tribunal later allowed the proprietors’ appeal. It found that immediate closure had not been warranted and criticised both the material presented and the absence of notice. The proprietors then claimed damages in negligence. Sir Douglas Brown upheld the claim, but the Court of Appeal, by a majority, reversed that decision in [2007] EWCA Civ 1186.

The issue before the House was whether the authority owed the proprietors a common law duty of care when preparing and making the statutory cancellation application. The events pre-dated the commencement of the Human Rights Act 1998.

1. Appeal dismissed unanimously. Lord Scott delivered the leading speech. Lord Rodger, Baroness Hale, Lord Carswell and Lord Neuberger agreed that the common law of negligence supplied no remedy.

2. Per Lord Scott, a registration authority applying for cancellation under section 30 of the Registered Homes Act 1984 owed no duty of care to the home’s proprietors. The statutory powers existed to protect residents. The proprietors’ interest in remaining open could conflict with residents’ safety. Imposing a duty to proprietors might inhibit the authority’s protective functions and endanger the statutory purpose.

3. A second and independent reason was that the application initiated judicial proceedings between opposing parties. The preparation, commencement and conduct of judicial or quasi-judicial proceedings do not ordinarily generate a negligence duty owed by one party to its opponent. Protection from loss caused by proceedings or orders must be supplied through judicial control and the governing rules and procedures. Martine v South East Kent Health Authority (1993) 20 BMLR 51 was rightly decided and applied.

4. The absence of adequate safeguards under section 30 did not justify creating a duty of care. The appropriate response was procedural reform, including expedited appeals, notice where practicable, possible cross-undertakings in damages, prompt applications for stays, and an express duty of full and fair disclosure.

5. Lord Carswell emphasised that immediate cancellation without hearing the owners should be very rare. Magistrates must probe whether a serious risk requires immediate action. Lord Neuberger added that a judge should ordinarily ensure that giving notice is impossible or inappropriate. Informal notice by telephone or email should normally be required where practicable, particularly when the proposed order is draconian.

6. Lord Scott, Baroness Hale and Lord Neuberger considered it arguable that equivalent post-commencement conduct would infringe article 6 and article 1 of the First Protocol. Their views were expressly inconclusive because the issue had not been argued and the events pre-dated the Human Rights Act 1998. Lord Rodger declined to speculate on that question.

1. House of Lords: The proprietors’ appeal was dismissed unanimously. The majority decision of the Court of Appeal was affirmed.
2. Court of Appeal: In [2007] EWCA Civ 1186, Arden and Wilson LJJ held that no duty of care was owed; Jacob LJ dissented.
3. Queen’s Bench Division: Sir Douglas Brown, sitting as an additional judge, held that the authority owed a duty of care and rejected its causation argument.
4. Registered Homes Tribunal: The Tribunal allowed the proprietors’ statutory appeal and set aside the magistrate’s cancellation order.
5. Magistrates’ court: A stipendiary magistrate granted the authority’s without-notice application for immediate cancellation of the nursing home’s registration.