Trent Strategic Health Authority v Jain & Anor

This appeal concerned whether a health authority owed a common law duty of care in negligence to proprietors of a registered nursing home when making an ex parte application under section 30 of the Registered Homes Act 1984 for cancellation of registration. The House held that no such duty of care was owed to proprietors: the statutory powers were designed to protect residents, and imposing a duty to protect proprietors would conflict with that purpose and risk inhibiting the exercise of statutory powers. The House also applied established authorities that actions taken in preparation for, or in the conduct of, judicial or quasi‑judicial proceedings generally do not give rise to tortious duties to opposing parties. Although the Court expressed strong sympathy for the appellants and noted that, had the Human Rights Act 1998 been in force at the relevant time, remedies under the Act might have been available, it concluded that the appropriate remedy is procedural and legislative reform rather than development of the common law of negligence.

This case arose after a health authority applied ex parte under section 30 of the Registered Homes Act 1984 to a magistrate for cancellation of registration of a nursing home run by Mr and Mrs Jain, resulting in immediate closure and removal of residents. The Jains had no notice and no opportunity to be heard; their appeal to a Registered Homes Tribunal succeeded months later, but by then serious and irreparable economic damage had been done.

Nature of the claim:

• The appellants sued in negligence seeking damages for economic loss caused by the authority's unjustified ex parte section 30 application and the magistrate's order.

Procedural history: At first instance Sir Douglas Brown found for the appellants. The Court of Appeal ([2007] EWCA Civ 1186) reversed the decision by majority (Arden and Wilson LJJ), Jacob LJ dissenting. The appellants obtained leave to appeal to the House of Lords.

Issues framed:

• Whether the health authority owed a common law duty of care in negligence to the proprietors in deciding to make and in making the section 30 ex parte application;
• What weight, if any, should be given to Convention rights and the Human Rights Act 1998 in considering development of the common law;
• Whether existing statutory and procedural safeguards made a tortious remedy unnecessary or inappropriate.

Court’s reasoning:

• The House reviewed two lines of authority: (a) cases where statutory powers conferred to protect one class may adversely affect others (e.g. child‑protection and regulatory contexts), and (b) cases concerning loss caused by the bringing or conduct of judicial/quasi‑judicial proceedings. Both lines supported the conclusion that no duty of care should be owed to adversely affected third parties or opposing litigants.
• Imposing a duty to protect proprietors would risk inhibiting authorities from exercising powers in the public interest to protect residents; that conflict of interests is a strong public policy reason against imposing the duty.
• The adequacy of procedural safeguards under section 30 (a single magistrate hearing an ex parte application with no provision for cross‑undertakings or expedited stay/appeal) was criticised. But the proper remedy lies in improving statutory or procedural safeguards or, where in force, in remedies under the Human Rights Act rather than creation of a parallel common law duty.
• The court noted that had the Human Rights Act 1998 been in force at the relevant time, Article 6 and Article 1 of Protocol 1 issues might have given rise to domestic remedies; but that Act was not yet in force for these events.

Appeal dismissed. The House held that a health authority exercising statutory powers under Part II of the Registered Homes Act 1984 (including section 30) did not owe a common law duty of care in negligence to the proprietors of a nursing home in respect of an ex parte cancellation application. Imposing such a duty would conflict with the statutory purpose (protecting residents) and with public policy established in authorities declining to impose duties to opposing parties or to third parties adversely affected by protective statutory schemes. The appropriate response is procedural and legislative reform or, where applicable, remedies under the Human Rights Act 1998.

First instance: Queen's Bench Division, Sir Douglas Brown (found for appellants). Court of Appeal: [2007] EWCA Civ 1186 (Arden LJ and Wilson LJ in majority dismissing the claim; Jacob LJ dissenting). House of Lords (this appeal): [2009] UKHL 4.