The common law is quite clear, there is no claim for 'pure' economic loss

in Trent.

Some of the reasoning is, however, unsatisfactory. To say, as Lord Scott does

"[W]here action is taken by a State authority under statutory powers

designed for the benefit or protection of a particular class of persons, a

tortious duty of care will not be held to be owed by the State authority

to others whose interests may be adversely affected by an exercise of the

statutory power. The reason is that the imposition of such a duty would or

might inhibit the exercise of the statutory powers and be potentially

adverse to the interests of the class of persons the powers were designed

to benefit or protect, thereby putting at risk the achievement of their

statutory purpose."

Cannot be quite right. If in exercising a statutory power or duty the

agent of a State authority negligently kills someone, unless there is a

privilege conferred by the legislation to behave in this way (very

unlikely) the claim should succeed.

The better view is that the duty being argued for in Trent is not one

that, obviously, persons generally owe to the claimant. That being so the

only possible source for this special duty on the public body was the

legislation under which they acted, and as it imposed only a public duty

with no correlative right in individuals adversely affected, the claim

failed.

As to the HRA point, this is something we have discussed before. What

Trent demonstrates is the *reduced* significance of the European

Convention of Human Rights 1950 for the common law of torts, following the

passing of the Human Rights Act 1998. If these facts were to recur today,

without the Act the UK would have been in violation of Article 13 of the

ECHR: the need to have an adquate remedy before the domestic courts.

Without the HRA, the courts would have  had to try and fashion a claim at

common law in order to prevent such a violation. Following the passing of

the HRA this is no longer necessary. (Article 13  is not one of the Rights

covered by the HRA, for the reason that the HRA itself ensures compliance

with Art 13).

So "our law" is no longer in violation of the ECHR at all. The actions of

Trent Strategic Health Authority constituted a violation of Art 1 (First

Protocol) (peaceful enjoymernt of possessions) and the court order

depriving them of a licence was a violation of Article 6 (right to a fair

trial), but this would not be changed one way or the other by the result

of the House of Lords decision in Trent. The common law didn't violate

these articles. The Act means that the pressure to distort the common law

is no longer there.

As to the 1950 Convention itself, for myself I think it is a good thing

that Turkey, Russia, the United Kingdom and Serbia are parties to the

Convention. I don't think we could expect other States to sign up and not

sign up ourselves.

Rob

> 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:

>

> Law School

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> Exeter EX4 4RJ

> England

>

>

> Phone:

>

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>

>

>

> LAWYER, n.

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

>

>

>

--

Robert Stevens

Professor of Commercial Law

University College London