A & Anor v Somerset County Council

For pre-action disclosure, the applicant need only show that the proposed claim is properly arguable and has a real prospect of success. The court should avoid determining substantive issues prematurely, particularly where the documents sought are needed to identify the period of breach and the resulting loss.

In a negligence claim concerning delay in protecting children, compensatable harm is not confined to a diagnosed psychiatric illness or disorder. Significant harm may suffice. Where the evidence already establishes likely significant harm from continuing exposure to abuse, the court may exercise its discretion to order disclosure even though causation and the additional harm caused during the period of breach remain to be investigated.

A and B, siblings who had been exposed to domestic violence and abusive parental behaviour, were eventually received into the care of Somerset County Council. The Official Solicitor investigated a possible negligence claim alleging that the Council had failed to remove them earlier.

The appellants sought social services records under CPR 31.16. Master Leslie refused the application, principally because there was no evidence that additional harm had been caused during the period of alleged delay and because no diagnosable psychiatric injury had been shown. The issue on appeal was whether that approach imposed too high a threshold at the pre-action disclosure stage.

1. Appeal allowed. The court exercised the discretion under CPR 31.16 afresh and ordered pre-action disclosure.
2. Under CPR 31.16(3), the court should normally be satisfied that the anticipated substantive claim is properly arguable and has a real prospect of success. It should be hesitant to determine substantive issues before disclosure, since the factual assumptions at that stage may be incomplete: Philip Rose v Lynx Express Ltd, Bridgepoint Capital (Nominees) Ltd [2004] EWCA Civ 447.
3. The purpose of disclosure in this case was to examine the records in order to identify when the local authority ought to have applied for the children’s removal. Until that period was identified, it was impossible to assess the additional harm caused after the hypothetical breach. The Master therefore placed the evidential sequence in the wrong order and set the bar too high.
4. The threshold concept under s 31 of the Children Act 1989 is relatively wide. Significant harm may found a personal injury or professional negligence claim even if it cannot be categorised as a psychiatric illness or disorder. The court accepted the approach of Wall LJ in D v Bury MBC [2006] 1 WLR 917.
5. The possibility that causation might ultimately fail, including because of delay, did not prevent disclosure at this preliminary stage. The existing evidence that the children had suffered significant harm through continuing exposure to violence gave the proposed claim a real prospect of success.

• High Court (Queen’s Bench Division): Master Leslie refused the application for pre-action disclosure on 20 April 2012.
• High Court (Queen’s Bench Division): On appeal, Mr Justice Eady allowed the appeal and ordered disclosure under CPR 31.16.