Summary
On an application for summary judgment or strike out, the court must apply the Easyair principles. It may examine evidence to identify assertions having no real substance, but must not resolve disputed facts or conduct a mini-trial.
In an Article 3 claim based on prolonged neglect, the threshold is assessed cumulatively and in light of all the circumstances, including duration, effects, age, sex and health. Fluctuating conditions may still create a real and immediate risk where deterioration is recurrent and potentially indefinite. Article 8 has distinct criteria from Article 3 and may be engaged by the same facts even where Article 3 is not.
Factual background
The claimant, a protected adult with autism, ADHD and learning difficulties, alleged that the defendant local authority failed over several years to protect her from serious neglect while she lived with her mother. She brought claims under articles 3 and 8 of the European Convention on Human Rights pursuant to section 6 of the Human Rights Act 1998.
The defendant applied for summary judgment under CPR 24.2, alternatively strike out under CPR 3.4(2)(a), arguing that the pleaded treatment did not meet the Article 3 threshold, that no real and immediate risk was established, that reasonable protective measures had been taken, and that causation was absent. It also argued that the Article 8 claim was inadequately pleaded and necessarily failed with the Article 3 claim. The central issue was whether either claim was unsuitable for trial or had no realistic prospect of success.
Held
- Applications dismissed. The factual basis was fluid and contained serious live issues, particularly concerning the cumulative effect of the alleged neglect, the risk confronting the authority at different times, the adequacy of interventions and causation. Those issues made strike out or summary judgment inappropriate where their resolution would require a mini-trial.
- The claim differed materially from AB v Worcestershire County Council and Birmingham City Council. It was advanced only cumulatively over approximately four years, rather than by reference to a finite number of incidents. The court therefore had to consider the overall impact of the pleaded treatment, while examining the records only so far as necessary to determine whether the factual assertions had no real substance or were contradicted. It could not resolve disputes by selecting between competing chronologies or assessing contested professional evidence.
- The Article 3 threshold was arguably met. Severity is relative and fact-specific. Duration, physical or mental effects, age, sex and health were relevant. Actual bodily harm or intense suffering was not required for degrading treatment. The pleaded combination of squalid and fluctuating conditions, poor hygiene and clothing, untreated medical needs, isolation, impaired education, vulnerability and prolonged neglect could objectively diminish human dignity. The fluctuating pattern did not necessarily remove a continuing risk where deterioration repeatedly followed short-lived improvements.
- The real and immediate risk issue was unsuitable for summary determination. Whether interventions temporarily removed the risk, or whether the risk remained present and continuing because the claimant could not sustain improvements, required findings of fact. The pleaded case also gave a realistic basis for arguing that the authority knew or ought to have known of the risk from its contemporaneous records.
- The breach and causation issues remained realistically arguable. The expert evidence identified earlier opportunities for legal intervention and removal, and the court could not decide at this stage whether those conclusions would be accepted. The claimant also needed to show only a real prospect of altering the outcome or mitigating the harm, not necessarily that the harm would have been wholly avoided on a strict but-for basis.
- The Article 8 claim was properly pleaded on the same factual matrix. Article 8 and Article 3 have different criteria, not merely different levels of seriousness. Prolonged neglect capable of impairing physical and psychological integrity could engage Article 8 even if Article 3 ultimately failed.
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Key cases cited
The 30 most senior of 32 authorities cited.
- Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2
- In re E (a child) (AP) (Appellant) (Northern Ireland) [2008] UKHL 66
- Van Colle (administrator of the estate of GC (deceased)) and another (Original-Respondents and Cross-appellants) v Chief Constable of the Hertfordshire Police (Original Appellant and Cross-respondent)Smith (Respondent) v Chief Constable of Sussex Police (Appellant) [2008] UKHL 50
- Regina v. Secretary of State for the Home Department (Appellant)ex parte Adam (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC) (Respondent)Regina v. Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent)(Conjoined Appeals) (HTML version) [2005] UKHL 66
- AB v Worcestershire County Council & Anor [2023] EWCA Civ 529
- ASK, R (On the Application Of) v The Secretary of State for the Home Department [2019] EWCA Civ 1239
- The Secretary of State for the Home Department v PF (Nigeria) [2019] EWCA Civ 1139
- ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725
- Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63
- ED&F Man Liquid Products Ltd. v Patel & Anor [2003] EWCA Civ 472
- THE ROYAL BROMPTON HOSPITAL NATIONAL HEALTH SERVICE TRUST v HAMMOND AND ORS [2001] Lloyd's Rep PN 526
- Swain v Hillman [2001] 2 All ER 91
- MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch)
- DSD & Anor v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB)
- Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch)
- R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 (Admin)
- X v Bulgaria (2021) 50 BHRC 3
- F.O. v Croatia App No 29555/13, 22 April 2021
- Khan v France App No 12267/16, 28 February 2019
- VK v Russia (2018) 66 EHRR 7
- Denisov v Ukraine App No 76639/11, 25 September 2018
- A v Croatia [2011] 1 FLR 407
- In re MA (Care: Threshold) [2010] 1 FLR 431
- Renolde v France (2008) 48 EHRR 969
- Wainwright v United Kingdom (2007) 44 EHRR 40
- DP and JC v United Kingdom (2003) 36 EHRR 14
- Z v United Kingdom (2002) 34 EHRR 3
- E v UK [2002] All ER (D) 381 (Nov)
- Aerts v Belgium (2000) 29 EHRR 50
- Bridgeman v McAlpine-Brown 19 January 2000, unrep., CA
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