SS v ESSEX COUNTY COUNCIL & Ors.

A contribution claim requires proof that the proposed contributor was liable for the same damage; a bona fide settlement by another tortfeasor does not, by itself, establish that liability. The court must identify the damage proved against the contributor and assess contribution by what is just and equitable, having regard principally to responsibility and causative potency. Compensation for litigation risk cannot be recovered where the underlying damage is not proved. Costs paid in the principal claim may form part of the same damage, but the contribution must remain proportionate to responsibility. In assessing costs of the contribution proceedings, the successful party may nevertheless receive only a proportion where it failed on substantial issues and recovered far less than claimed.

Essex County Council admitted negligence and vicarious liability to SS, a protected party, and settled her principal claim for £325,000, paying a further £200,000 on account of costs. The Council brought a Part 20 claim against SS’s former foster parents, FF and FM, seeking an indemnity or contribution under the Civil Liability (Contribution) Act 1978.

The Council ultimately alleged that FF and FM had caused the same damage by inadequate nutrition and neglect. It abandoned or did not pursue allegations of sexual abuse, physical assault and false imprisonment as freestanding causes. The issues were whether FF and FM were liable for the same damage, the amount of any contribution, whether costs paid to SS were recoverable, and the costs of the Part 20 proceedings.

1. Liability under the 1978 Act. The Council had to prove that FF and FM were liable in respect of the same damage as SS had claimed against the Council. The settlement did not establish FF and FM’s liability under section 1(4). The Council could not challenge its own liability to SS, but it still had to prove liability against the Part 20 Defendants: [28], [130]-[138].
2. FF and FM owed SS a duty of care as her carers. They negligently failed to provide sufficiently nutritious food and failed to provide an acceptable living environment or adequate personal hygiene. The proved negligence caused malnutrition and further neglect lasting at least 18 months. The evidence did not prove physical or emotional abuse, sexual abuse, or an earlier period of malnutrition or neglect: [107]-[123].
3. The screen and chemical toilet used to restrict SS’s movements at night were a poor but reasonable safety measure in view of her lack of danger awareness. Their use alone did not amount to false imprisonment. The arrangement increased the carers’ obligation to maintain hygiene and care, which they failed to do: [124]-[128].
4. Contribution. Under section 2 of the 1978 Act, the contribution had to be just and equitable having regard to the extent of the Defendants’ responsibility. The court had a wide discretion. The settlement figure could not be used to compensate the Council for unproved abuse, unproved periods of negligence, PTSD, ongoing care needs or litigation risk. The proved pain and suffering was valued at £14,000. FF and FM were equally responsible: [139]-[162].
5. Costs paid to SS could constitute part of the same damage. Applying the approach in Mouchel Ltd v Van Oord, a broadly commensurate contribution was appropriate. A further £10,000 was awarded, producing a total contribution of £24,000: [163]-[167].
6. Costs. ECC was the successful party for the purposes of CPR 44.2, but it had failed on substantial allegations and recovered much less than claimed. The ordinary order was therefore varied. ECC was awarded 33% of its costs of the Part 20 claim, assessed on the standard basis: [168]-[176].