Although I regard the Human Rights Convention as pernicious and would

personally want to throw it out neck and crop from our law, we're stuck

with it. And in the light of this I must confess to sharing Neil's

bewilderment at Scott's approach. Essentially, he is deliberately making

our law non-Convention-compliant on the basis that it doesn't matter

because the plaintiff might now get some other remedy for having had his

rights trampled on by the State. Does anyone share my view that this is

no way to run a legal system outside Alice in Wonderland?

Andrew

 

-------- Original Message --------

Subject:        Negligence of Public Authority in House of Lords

Date:        Wed, 21 Jan 2009 23:05:17 +0000

From:        Neil Foster <Neil.Foster@newcastle.edu.au>

To:        obligations@uwo.ca <obligations@uwo.ca>

Dear Colleagues;

Interested in what people think of the decision in /Trent Strategic

Health Authority (Respondents) v Jain and another (Appellants)/ [2009]

UKHL 4

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090121/trent-1.htm .

The Appellate Committee of the House of Lords unanimously holds that a

public authority which carelessly applied for, and obtained, an /ex

parte/ order closing down a nursing home run by the respondents

(resulting in a loss of the business despite the fact that a later

review showed that the immediate closure had been completely

unnecessary), owed no duty of care in negligence for the economic loss.

Two streams of authority are used to support the decision by Lord Scott,

who gives the main judgement. One, those cases rejecting a duty owed to

the "subjects of investigation" by statutory bodies charged with

protecting the interests of members of the public (while it is not

cited, /Sullivan v Moody/ in Australia is this type of case). Here the

powers to close down nursing homes were given for the purposes of

protection of the residents, not protection of the proprietors. (While

this claim was not based on an allegation of "breach of statutory duty",

there was a similar result in an Australian BSD claim in /Saitta v

Commonwealth* */[2003] VSC 346, where it was held that the duty of the

Commonwealth to pay benefits to nursing homes was one that was designed

for the benefit of the residents, not (as alleged in that case) the

benefit of one of the private contractors engaged to run the home.)

The second line of cases are those where one party involved in

litigation, or potential litigation, is said not to have a common law

duty of care to their adversary (or potential adversary?) Since the

statute gave a power to the authority to effectively "prosecute", these

cases no duty was owed. /Customs & Excise Commissioners v Barclays Bank

plc/ [2006] UKHL 28; [2007] 1 AC 181 is cited for this "litigation

adversarial immunity" proposition. I wonder whether this is a genuinely

valid principle, especially where the resources of a large government

department are on one side, versus a small business operator. Still, it

was used to support the no-duty finding here.

Another interesting aspect of the decision is the way the /Human Rights

Act/ is invoked. Most of their Lordships offer the view that if the

litigation had been commenced after 2 October 2000 that the plaintiffs

would have been able to recover damages under that Act for breach of a

Convention right. Lord Scott in particular develops this argument in

great detail. But the fact that there is a Convention right seems to be

used at [11] as a reason /not/ to develop the common law duty of care to

provide a remedy in a case of fairly clear injustice and abuse of power.

(UK colleagues can help me here- there seems to be a hint in para [19]

that if the Jains fail in the UK, they will still be able to approach

the ECHR in Strasbourg for a remedy in relation to the pre-2000 breach.

Is that right? If so then clearly the many things that are said by Lord

Scott about how the actions of the authority breached the Convention are

no doubt meant as "guidance" for the ECHR to award them some damages

against the UK government?)

I can see the arguments either way here on the duty issue. But for those

of us in non-Convention common law jurisdictions the guidance on duty of

care offered by the House of Lords must be taken with increasingly large

grains of salt if duty of care decisions are to be stifled by reference

to the Convention.

Regards

Neil F

 

 

 

Neil Foster

Senior Lecturer, LLB Program Convenor

Newcastle Law School

Faculty of Business & Law

MC158, McMullin Building

University of Newcastle

Callaghan NSW 2308

AUSTRALIA

ph 02 4921 7430

fax 02 4921 6931

--

Andrew M Tettenborn

Bracton Professor of Law, University of Exeter

Snailmail:

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LAWYER, n.

One skilled in circumvention of the law. (Ambrose Bierce, 1906).