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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bowden & Anor v Lancashire County Council [2002] EWCA Civ 569 (16 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/569.html Cite as: [2002] EWCA Civ 569

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(His Honour Judge Wilcox: sitting as a High Court Judge)

		Royal Courts of Justice Strand London WC2 Tuesday, 16th April 2002

Tuesday, 16th April 2002

1. LORD JUSTICE PETER GIBSON: I will ask May LJ to give the first judgment.
2. LORD JUSTICE MAY: Part X of the Children Act 1989 provides for child-minding and day care for young children. Section 71 of the 1989 Act requires every local authority to keep a register of persons who act as child-minders and persons who provide day care for children under the age of eight. Sections 72 and 73 have requirements to be complied with by child-minders and persons providing day care for young children. Section 74 provides circumstances in which a local authority may cancel the registration of persons registered under section 71. The circumstances are specified. Section 77 provides that, not less than 14 days before cancelling a registration, the authority must give notice to the registered person of their intention to do so and inform them of their right to object. The objection has to be considered. If the authority decides nevertheless to cancel the registration, a person aggrieved by this may appeal to the court. Thus cancellation of registration under section 74 is not immediate. The local authority has to give notice and give the registered person an opportunity to make representations.
3. This contrasts with section 75, which is headed "Protection of Children in an Emergency". Under section 75, a local authority may apply to the court for an order cancelling a registered person's registration, and if it appears to the court that a child who is being looked after by the registered person is suffering or is likely to suffer significant harm, the court may make the order cancelling the registration. Section 75(3) provides that an application under this section may be made ex parte and shall be supported by a written statement of the authority's reasons for making it.
4. Mrs Bowden, one of the claimants in this case, was before 3rd February 1994 registered as a person entitled to provide day care under section 71 of the 1989 Act. She ran a business providing day care with her husband at 78 Vicarage Lane, Blackpool.
5. On 3rd February 1994, the respondent, Lancashire County Council, applied to Blackpool Justices for an order under section 75(1)(a)(i) for the cancellation of Mrs Bowden's registration. The application was made without notice to her. The justices heard sworn evidence from three witnesses and received twelve statements in all and they heard the evidence of an inspector. They made an order cancelling her registration.
6. Mrs Bowden appealed against this order, and on 18th May 1994 her appeal was heard by Hollis J. He allowed the appeal. The respondent appealed against this order to the Court of Appeal. The Court of Appeal lifted a stay which had been imposed on 26th May 1994. On 18th June 1994 the Court of Appeal dismissed the respondent's appeal and affirmed Hollis J's order.
7. I have read in full the judgments of both Hollis J and the Court of Appeal. The essential reason why Hollis J allowed the appeal and the Court of Appeal upheld his order was that the circumstances which the respondent put before the justices on 3rd February 1994 did not constitute an emergency sufficient to justify a summary order without notice under section 75. There was before Hollis J, as had not been before the justices, material in opposition to the facts contended for by the respondent. Since, however, the appeal was allowed on essentially procedural grounds, the merits of any substantive allegations made by the respondent have never to that extent been determined. The central determination was that there was not a sufficient emergency.
8. Because of the order which the respondent had obtained on 3rd February 1994, Mr and Mrs Bowden's child care nursery was closed between 3rd February 1994 and 26th May 1994. Their case in the present proceedings is that its reputation had suffered and that the business was irretrievably damaged. In consequence it operated with lower numbers and at a loss. In the following year the claimants had to sell the nursery business and the property. In the present proceedings, they claim damages against the respondent essentially quantified as the loss during the period when the child care nursery was closed, further loss between 26th May 1994 and when the business was abandoned and losses consequent from its termination. The cause of action on which they rely is that the respondent owed a common law duty of care to act with reasonable care so as not to cause them this loss. It is not alleged that the respondent owed them a duty in relation to its discretion to decide whether or not to seek cancellation. It is, however, alleged that they were in breach of duty in making the application without notice under the emergency procedure of section 75 when it was inappropriate or unreasonable to do so.
9. On 24th July 2000, a district judge at Preston ordered the trial of a preliminary issue in these terms:

"Whether, in the absence of an allegation of bad faith, a local authority owes a duty of care to a Respondent when making an ex parte application to a Justice of the Peace in reliance upon section 75(3) of the Children Act 1989 for cancellation of the respondent's registration of the children's nursery under the urgent procedure."

10. This preliminary issue came for decision before His Honour Judge David Wilcox, sitting as a High Court Judge, on 17th January 2001, and he gave judgment on 18th January. He decided the issue in favour of the respondents. The effect of that decision was to bring the proceedings to an end. In the course of his judgment he referred at length to the decision of the House of Lords in X and others (minors) v Bedfordshire County Council [1995] AC 633. He quoted at length from the judgment of Lord Browne-Wilkinson in that case. He also referred to a decision of this court in Martine v South East Kent Health Authority reported in the Times Law Reports on 8th March 1993. In that case it had been held that there was no cause of action in negligence for the alleged careless investigation by an area health authority towards a registered nursing home leading to an urgent application under section 30 of the Registered Homes Act 1984 for cancellation of the registration.
11. In the present case, the judge carried out an analysis of what Lord Browne-Wilkinson had said in X v Bedfordshire. He said that the role of the Magistrates' Court in this case was essentially part of a system of checks and balances. They made the order which they did, which it was subsequently held on appeal that they should not have made. But the judge concluded that the respondents were under no duty of care at common law in making the application in the first place.
12. That order, as I have said, was made on 18th January 2002. The time limit for filing a notice of appeal seeking permission to appeal is 14 days. The notice of appeal which is presently before the court was not filed until 11th February or thereabouts 2002, that is more than a year later. The explanation for this delay initially appeared in a witness statement of Dr Ramsden, who essentially explained that it took some time for counsel to consider the matter, in particular to consider the case of Martine v South East Kent Authority. There was then a necessity for counsel to advise in the face of an emphatic adverse written note from Mr Scrivener QC to the effect that the result was that they could not appeal and that the judge was correct. There was then an application for a legal aid certificate, followed by a further application to enlarge the certificate to enable the notice of appeal to be filed and the matter to proceed. An amended legal funding certificate was eventually given on 7th January 2002 and received shortly after that.
13. The application for permission came before Latham LJ on the papers in that state of the information, and he refused permission and refused the necessary extension of time. In doing so he wrote as follows:

"Bearing in mind that the time limit for filing a notice of appeal is 14 days, it is nothing short of astonishing that the application to the LSC for an amendment to the legal aid certificate was not made until almost 28 days after the decision, that it took from 27th April 2001 to 4th July 2001 for the further application for an amendment to be made, and that there was yet further delay between 7th January 2002, when the appropriately amended certificate was received and the 8th February 2002 for the application to be filed. Even if much of the delay can be laid at the door of the LSC, it is difficult to see how Mr Ramsden can sensibly say in paragraph 20 of his statement that he believed that the applicant's legal advisers had acted with appropriate expedition. Even if, therefore, the lengthy delays by the LSC could be said to justify an extension, I would in any event be concerned as to why more active steps were not taken to prod the LSC into action. There can be no justification for the delay by the applicant's legal advisers. The overall delay is such that it would not be just to grant an extension of time."

14. Mr Price QC, who appears before us this morning with Mr Paul Stafford, has first of all drawn our attention to further material on the subject of delay which was not before Latham LJ. That consists, firstly, of a very elaborate and helpful chronology, which I have read and considered in full, a further long and very helpful note from Mr Stafford (starting on page 158 of the bundle), which explains his involvement in this matter over the year in question, and then two further witness statements, one from Alan Carrington and the second one from Ronald Raymond Hayward, both with solicitors, who explain their part in this rather long period.
15. Mr Price submits that the approach of this court should be to consider the delay, to consider whether it is explainable and excusable, to consider in particular whether the merits of the appeal are sufficient to outweigh the delay, and to consider, as he submits, that there is no real prejudice to the trial of the issue and that therefore there would be a greater inclination in this court to grant an extension. He submits in summary that this is a strongly meritorious case and that there is no prejudice.
16. In 1994 it was established that the material put before the court did not justify an emergency application. In the present case the judge did not refer to important decisions of the House of Lords in addition, and subsequent, to the case of X v Bedfordshire. In particular Mr Price refers to by Barrett v London Borough of Enfield [1999] (as we have it) 3 All.E.R 193 and Phelps v London Borough of Hillingdon (again as we have it) [2000] 4 AllER 504. He submits that there is in Mr Stafford's very helpful skeleton argument a strong case in law for the existence of a duty of care, and that there will be no prejudice in the debate and discussion about what he, Mr Price, refers as to an arid point of law. He submits that the merits outweigh the delay. He has taken us through the highlights of the chronology. These include, but are not limited to, the fact that the judge gave his oral judgment in the presence, not of Mr Scrivener, but of junior counsel sent for that purpose on 18th January 2001; that within a few days Mr Scrivener had written a note saying that the result was that Mr and Mrs Bowden could not appeal and that the judge was correct; that Dr Ramsden was keen to investigate this further and an application was made to amend the funding certificate in February to enable Mr Stafford to give an opinion.
17. Eventually the amended certificate was received on 1st May 2001, and within 17 days instructions were sent to Mr Stafford, who was in difficulties for the absence of a transcript. Mr Stafford had to consider the complicated jurisprudence on this line of the law. He had not, for want of appropriate funding, himself been present before Judge Wilcox in January. He wrote an opinion which he delivered and completed on 22nd June 2001. The application was sent to the LSC on 4th July 2001. Unfortunately Dr Ramsden was ill for most of the month of August 2001; and Mr Hayward appears to have been absent for 10 days during that period as well.
18. Between August and December the delay was in the hands of the LSC, but during that period there were, it is said, regular telephone calls to establish how it was getting on. It was not until 9th January 2002 that the amended LSC certificate was received by Mr Carrington. Instructions were then given to Mr Stafford to prepare the grounds of appeal. But, perhaps unsurprisingly, he was heavily engaged in other matters and could not turn his hand to this one immediately. So it was that it was not until 11th February 2002 that the notice of appeal was eventually filed with Dr Ramsden's witness statement explaining what had been going on. I have also read in full Mr Stafford's note of his involvement and the two other witness statements to which I have referred.
19. Mr Price submits that in all these circumstances the delay was excusable. I am not, I think, concerned with whether individuals should be excused or not. But in the round, I entirely disagree that this very long delay was excusable. On the contrary, I entirely agree with Latham LJ that the delay in filing the notice of appeal and applying for permission to appeal is, if I may say so, grossly excessive and inadequately explained or excused in the material which we have. It seems to me that whilst Mr Stafford's note explains his fairly limited personal involvement, it does not in the round improve (from the point of view of the applicants) the overall position which Latham LJ considered. On the one hand, periods of time can be explained. On the other hand, periods of unexplained and unexcused delay can be identified, the latter adding up to a significant period of time, but the total being in excess of a year. I say nothing about whether individual periods of delay are individually excusable, but the result was a period of delay in excess of a year when the time period allowed by the rules is 14 days.
20. I agree with Latham LJ that the extension of time should be refused, notwithstanding Mr Price's submissions. In reaching that conclusion, I have, as he submits, considered the merits of the proposed appeal and questions of prejudice. As to prejudice, it may be that the point of law arising from the preliminary issue is one which any competent lawyer could properly debate. But that would not be the end of the matter. If it were successful, the action would have to proceed as to its facts, and those facts now go back to 1994 and beyond. I am not persuaded in the round that there would be no prejudice.
21. We have, as I say, very carefully prepared skeleton submissions on the subject of the law from Mr Stafford. He correctly points out that, although the judge considered X v Bedfordshire at some length, he did not refer to the later cases of Barrett v Enfield and Phelps v Hillingdon among many others which have considered common law liability arising out of the performance of statutory functions. It is not an easy area of the law, nor one which can be dealt with comprehensively in a short judgment. I should perhaps say that I have personal close experience in this general area of the law, having given the first judgment in a case called S v Gloucestershire County Council and L v London Borough of Tower Hamlets and Havering in which the judgment of this court was given on 14th March 2000. The general trend of the authorities is to say that some of these cases should not be determined as cold questions of law in advance of a determination of the facts. On the other hand, there does appear to have been some retrenchment in Strasbourg from the difficult position adopted in the case of Osman, which caused difficulties particularly for Lord Browne-Wilkinson when Barrett v Enfield was considered in the House of Lords. There is so much jurisprudence on this subject that it is scarcely possible to say in a few sentences that the contention of law in the present case is unarguable. I would not say that it was unarguable. On the other hand, I have the strongest feeling that it would in the end be likely to fail, notwithstanding Mr Price's submissions, and that the judge's decision in the present case would be likely to be upheld. I say this shortly for the following very briefly expressed reasons.
22. Under this legislation the local authority have obligations towards children in the matter of the registration of child-minders. It is not contended in the present case that they were in breach of any duty in considering the question of Mr and Mrs Bowden's registration, nor in taking steps to deal with it. They decided to make an emergency application. But it was the justices who acceded to that application and who made the order. The finding in the Court of Appeal was that the justices should not have entertained the application so as to grant it, but that was far from saying that the respondents owed a common law duty of care not to make an emergency application in the first place. Admittedly, it was their application which initiated the order which was eventually successfully appealed. But it was the justices who made the order.
23. For these reasons, in my judgment the application for an extension of time should be refused and the application for permission to appeal likewise should be refused.
24. LORD JUSTICE PETER GIBSON: I agree.
Order: Applications refused. Legal aid taxation of the Applicant's costs.