MS v Lincolnshire County Council

On an appeal from summary judgment, the appellate court may substitute its own evaluation where the lower court’s assessment of documentary material is wrong. A claim should proceed where the evidence shows a real, rather than fanciful, prospect of establishing breach and causation, particularly where resolution requires detailed factual investigation. Written expert evidence should not be excluded merely because the expert cannot attend trial or participate in a joint statement for reasons outside the party’s control. Its weight is ordinarily a matter for trial. Allegations involving professional negligence remain subject to the applicable professional standard, including the Bolam approach, while challenges concerning resource allocation may engage public-law unreasonableness.

The claimant appealed against an order made by His Honour Judge Inglis in the Nottingham County Court on 17 June 2010 under CPR Part 24. The order gave summary judgment to Lincolnshire County Council on nearly the whole of a claim concerning alleged failures in the claimant’s care while he was a child, leaving only an allegation of sexual abuse at Danes House to proceed.

The claimant challenged the treatment of his written expert evidence and argued that several allegations, including the failure to secure a placement at Beacon Lodge and the resulting lack of education, required a trial. The central issue was whether the lower court had been wrong to conclude that those allegations had no real prospect of success.

1. The appeal was allowed in part. The summary judgment order was varied so that the claim concerning sexual abuse at Danes House, the failure to take up the Beacon Lodge placement, and the failure to arrange proper education or schooling from about April 1995 to March 1997 remained for determination.

2. The appeal was limited to reviewing whether the County Court’s decision was wrong under CPR rule 52.11(3). Since the evaluation was based on documents rather than oral evidence, the appellate court could substitute its own assessment where it reached a clear contrary conclusion.

3. The lower court should have approached the expert-evidence issue on the basis most favourable to the claimant that a trial judge could reasonably adopt. The claimant’s experts had been unable to continue without legal representation and had not participated in meetings of experts. That circumstance was materially different from a wilful refusal to comply with a court direction.

4. The written reports should not automatically have been excluded. They might contain material that was unchallenged or assist in questioning the opposing experts. The weight and reliability of the reports were matters for trial.

5. Most allegations were properly dismissed because the expert evidence did not provide a realistic prospect of establishing a substantial breach of duty or causation. The allegation concerning the known paedophile, Alex George, was also properly dismissed because the evidence did not show that better procedures would probably have produced a different outcome.

6. The Beacon Lodge and education allegations could not fairly be resolved on summary judgment. The evidence disclosed criticisms of the Council and raised factual issues requiring detailed investigation. The claimant was not thereby assured success at trial. The issues might involve professional negligence under the Bolam approach and, concerning resource allocation, possible unreasonableness in the Wednesbury sense.

7. No order for costs was made.

• High Court (Queen's Bench Division) — Appeal from the Nottingham County Court order dated 17 June 2010. The appeal was allowed to the limited extent of varying the summary judgment order.
• Nottingham County Court — Summary judgment for the defendant on all issues except the Danes House sexual-abuse allegation.