Richards v Worcestershire County Council & Anor

The exclusivity principle applies where a claimant challenges public law action and the claim affects the public generally, or justice otherwise requires judicial review. It should not obstruct a private law claim merely because breach of a public duty forms one ingredient of that claim.

A restitutionary claim alleging that public authorities provided statutory after-care but wrongly left the recipient to fund it may proceed under Part 7 of the Civil Procedure Rules 1998. The rule barring damages for inadequate performance of a statutory after-care duty does not necessarily answer such a claim. Disputed questions about whether the services were agreed, excessive or privately arranged, and whether the authorities were enriched, require evidence and are unsuitable for determination on a strike-out application.

The claimant received community and residential care following compulsory detention for mental disorder. His deputy paid for that care between 2004 and 2013. He alleged that the defendants had provided or agreed the services as statutory after-care under section 117 of the Mental Health Act 1983 and were responsible for their cost.

The claimant commenced a Part 7 claim seeking restitution of the payments. Newey J refused to strike it out as an abuse of process. The defendants appealed, contending that the claim had to be brought by judicial review and that non-compliance with section 117 could not support a private law claim. Permission to pursue a further ground concerning mistake was refused because it had not been argued below and depended on evidence.

The central questions were whether the claim contravened the exclusivity principle and whether the alleged failure to pay was incapable of supporting a restitutionary claim.

1. Appeal dismissed. Rupert Jackson LJ, with whom Lewison and Hamblen LJJ agreed, held that the claimant could pursue the pleaded restitutionary claim under Part 7 of the Civil Procedure Rules 1998.

2. The exclusivity principle derived from O’Reilly v Mackman applies where a claimant challenges a public law decision or action and the claim affects the public generally, or justice requires judicial review for some other reason. The principle must remain within its proper scope. It is not a general barrier to private law claims in which breach of a public duty is one ingredient: [1983] 2 AC 237.

3. The pleaded claim was private in character. It alleged that the defendants delivered after-care services under section 117 of the Mental Health Act 1983 but left the claimant’s deputy to pay for them. The claim had no wider public impact, and justice supplied no other reason for requiring judicial review. Applying the exclusivity principle to bar it would cause injustice.

4. The authorities concerning private actions for breach of statutory duty did not require the claim to be struck out. The ordinary rule remains that breach of statutory duty does not itself create a private cause of action unless Parliament intended one. The court also approved Clunis insofar as it established that a patient receiving inadequate section 117 after-care cannot claim damages merely for breach of that statutory duty: [1998] QB 978.

5. The present claim was materially different. It did not allege failure to supply after-care or negligent delivery. It alleged that adequate services had been delivered for which the defendants were responsible, but that the claimant had paid. The principles in X (Minors), O’Rourke and Clunis therefore did not provide a complete answer.

6. Whether the services were agreed by the defendants, were private or excessive arrangements, or enriched the defendants depended on contested evidence and findings of fact. Those issues belonged at trial and could not properly be resolved on strike-out. Permission to appeal on the separate mistake ground was refused for the same evidential reasons.

1. Court of Appeal (Civil Division): The defendants’ appeal was dismissed. The court upheld the refusal to strike out the Part 7 restitutionary claim: [2017] EWCA Civ 1998.
2. High Court, Chancery Division, Bristol District Registry: Newey J dismissed the defendants’ application to strike out the claim as an abuse of process. No neutral citation is stated in the judgment.