Nottinghamshire County Council v Bottomley & Anor

A local authority may be joined to a personal injury claim where the amount or form of the damages award will affect its liability for the claimant’s care and its ability to recover care costs. The court’s joinder powers should be interpreted broadly, subject to its discretion to refuse unmeritorious intervention.

When deciding between a lump sum and periodical payments, “all the circumstances of the case” include the financial effect on a local authority which may bear the claimant’s care costs. A litigation friend whose employer has a financial interest in that choice is disqualified by the resulting conflict of interests and the requirement that justice be seen to be done.

The claimant had suffered severe brain damage at birth. After the defendant health authority admitted breach of duty, judgment was entered and damages remained to be assessed. Nottinghamshire County Council provided the claimant’s care and expected to remain involved when she entered adult services.

The council applied under Civil Procedure Rules 1998 Part 19.2 to be joined so that it could give evidence about future care, obtain a determination of its reimbursement rights, and address whether damages should take the form of a lump sum or periodical payments. HH Judge Inglis refused joinder, holding that the council’s financial interests were irrelevant to the form of the award.

The council appealed. The issues were whether its participation was desirable for resolving matters connected with the damages award and whether the claimant’s litigation friend, who was a senior council employee, was disqualified by a conflict of interests.

1. Appeal allowed. Nottinghamshire County Council was ordered to be joined and the impending damages trial was vacated. Stanley Burnton LJ gave the judgment, with which Rix and Maurice Kay LJJ agreed.

2. The claimant’s litigation friend was disqualified by a conflict between her duty to seek the best outcome for the claimant and her employer’s financial interest in obtaining an award from which care costs might be reimbursed. Joinder merely made an existing conflict more apparent. A litigation friend must be able to exercise independent judgment upon legal advice. The requirement that justice be seen to be done also precluded a litigation friend who appeared to have such a conflict.

3. The court’s powers of joinder should be interpreted broadly, while unmeritorious applications may be refused in the exercise of discretion. Under Civil Procedure Rules 1998 Part 19.2, joinder was desirable both to resolve matters already in dispute and to resolve connected issues involving the council. Determining the amount and form of the award required evidence about the claimant’s future placement and whether the council would charge for its services. The council was also entitled to be heard on whether the award should comprise a lump sum or periodical payments.

4. Under Civil Procedure Rules 1998 Part 41.7, the requirement to consider “all the circumstances of the case” was not confined to circumstances relating only to the claimant and defendant. It included the effect of the award’s form upon a local authority which might bear some or all of the claimant’s care costs, immediately or in the future.

5. The authorities supported joining local authorities where their complex rights and liabilities should be resolved before an award or compromise. The undertaking accepted in Peters v East Midlands SHA [2009] EWCA Civ 145 to control a later application for public funding also demonstrated the local authority’s interest. A local authority was entitled to address whether such an undertaking should be given, its terms, and notice of any application for authority to seek public funding.

6. The judge had therefore erred by treating the council’s financial concerns as irrelevant. The discretion was exercised afresh in favour of joinder. The late application and loss of the trial date caused no real prejudice because the council continued to provide care and accepted liability for the costs thrown away.

1. Court of Appeal (Civil Division): The appeal was allowed. The order refusing joinder was displaced, Nottinghamshire County Council was joined as an additional party, and the damages trial was vacated: [2010] EWCA Civ 756.

2. Nottingham District Registry: HH Judge Inglis dismissed the council’s application under Civil Procedure Rules 1998 Part 19.2 to be joined as an additional party. The judge held that the council had no arguable status to influence the damages award and that its financial interests were irrelevant to the choice between a lump sum and periodical payments.