Menon & Ors v Herefordshire Council

Summary judgment on a discrete issue is inappropriate where material facts are disputed and a full trial will still be required on liability. The court must ask whether the claim or issue has a real prospect of success, but must avoid conducting a mini-trial on incomplete evidence. A local authority’s statutory duties concerning residential accommodation may provide an arguable basis for defending alleged unlawfulness in changing or declining placements. Legal professional privilege is absolute unless waived or overridden by statute. Documents compulsorily produced for proceedings before another tribunal cannot be used in collateral litigation without permission or consent.

The claimants brought proceedings for alleged misfeasance in public office arising from the operation of Rosedale Residential Home. They alleged that the defendant’s employees unlawfully caused residents to leave Rosedale in May 2010 and unlawfully declined to arrange placements there because of concerns about care quality.

The claimants sought summary judgment on those issues. They also sought disclosure of the defendant’s legal advice and permission to use privileged documents produced in earlier First-tier Tribunal proceedings. The central questions were whether the issues could properly be decided summarily and whether privilege or the limited purpose of the earlier production order permitted use of the documents.

1. Summary judgment refused. The court applied CPR 24.2 and the principles stated in Three Rivers District Council v Governors of the Bank of England (No 3) [2001] UKHL 16 and Wragg v Partco Group Ltd [2002] Lloyd’s Rep. 343. Summary judgment requires absence of a real, rather than merely probable, prospect of success, but it is unsuitable where disputed facts require oral evidence and cross-examination.
2. The defendant had a realistic prospect of defending the claim that its employees acted unlawfully. The statutory scheme, including section 21 of the National Assistance Act 1948 and paragraphs 2 and 3 of the Directions, arguably permitted arrangements to be reviewed where accommodation ceased to appear suitable. It was also arguable that concerns about care quality could bear on suitability. The court did not finally determine those issues.
3. Summary determination would not save time or costs. The parties disputed what occurred at Rosedale, and the trial would still have to determine unlawfulness, improper purpose, targeted malice and the relevant mental state for misfeasance in public office.
4. The application for disclosure of legal advice was dismissed. Employees authorised to obtain advice from the defendant’s in-house lawyers were clients for legal advice privilege. There was no public-policy exception for advice relating to alleged misfeasance in public office. Properly privileged communications were protected absolutely, subject to waiver or statutory override, applying Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 A.C. 610.
5. Permission to use documents produced in the First-tier Tribunal proceedings was refused. The documents were obtained compulsorily for use in those proceedings and could not be used for collateral purposes without permission or consent. CPR 31.20 did not apply because the documents were not inadvertently inspected during disclosure in these proceedings. Even assuming CPR 31.22 or an inherent jurisdiction applied, permission was inappropriate given the compulsory production, the limited purpose, the privilege and the defendant’s error.

The applications were refused.