Ponnusamy & Ors v Secretary of State for Foreign and Commonwealth Affairs

A private law duty of care will not ordinarily arise from the executive’s participation in negotiating an independence constitution. The claimant must establish proximity, foreseeability and that it is fair, just and reasonable to impose the duty. Where alleged harm results from legislation or practices adopted by an independent state after independence, the former colonial power will not ordinarily be legally responsible. A broad, policy-driven constitutional negotiation is also incompatible with a damages duty owed to a large and undefined class, particularly where judicial review provides the appropriate public law remedy.

The claimants, Malaysian nationals of South Indian and mainly Tamil origin, alleged that the British Government had negligently failed to protect their community during the constitutional negotiations preceding Malaysian independence in 1957. They claimed that the resulting constitutional arrangements caused continuing discrimination in education, employment, property, business, religious land and cemeteries, marriage registration and citizenship.

The Secretary of State applied to strike out the claim under CPR 3(4) and, alternatively, for summary judgment under CPR 24(2). The principal issues were whether the defendant was sued in right of the United Kingdom Government, whether any breach could be causally connected to post-independence loss, and whether a common law duty of care could arise from the constitutional negotiations.

1. Application allowed. The Particulars of Claim disclosed no reasonable grounds and were struck out under CPR 3(4)(2)(a). Judgment was entered for the defendant under CPR 3(4)(3).
2. The Crown Proceedings Act 1947 did not permit the claim in the pleaded form. Under section 40(2)(b), proceedings could not be brought in respect of liability arising otherwise than in respect of Her Majesty’s Government in the United Kingdom. Applying R v Secretary of State for Foreign and Commonwealth Affairs, ex p Quark Fisheries [2005] UKHL 57, the constitutional authority exercised in 1957 concerned the affairs of the Federation of Malaya. The Federation’s functioning government negotiated independence, and the statutory scheme terminated the United Kingdom’s authority over the territory.
3. Even assuming a duty existed, the alleged loss resulted from laws and practices adopted by Malaysia after independence. Legislative responsibility after independence rested with the Malaysian government. The possibility that a different constitutional settlement might have been adopted, or later amended, did not establish causation.
4. The proposed duty also failed the Caparo Industries v Dickman [1990] 2 AC 605 requirements. There was no special relationship or statutory responsibility to protect the Indian minority. Foreseeability of the indefinite continuation of preferential treatment did not amount to foreseeability of the specific injuries alleged. It was not fair, just and reasonable to impose a private damages duty on broad, policy-driven constitutional negotiations.
5. The court accepted that irrationality or conduct outside the statutory power was a necessary threshold where the alleged duty arose from a public law discretion. The failure to insist on a time limit for Article 153 was not shown to be irrational in the constitutional and political circumstances of 1957.

First-instance decision. No prior appellate decision is stated in the judgment.