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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 >> S & Ors v Chapman & Anor [2008] EWCA Civ 800 (20 May 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/800.html Cite as: [2008] EWCA Civ 800

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE SEYMOUR QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th May 2008

Lord Justice Ward:

Introduction

1. Sometimes life can be very cruel indeed, often and perhaps especially to those who do not deserve it. Fate has dealt a harsh blow to the family who appear before us, who have all, each and every one of them, suffered grievous misfortune. In their stalwart efforts to cope they have won our admiration and they command, and I earnestly hope they feel they have received, our sympathy.
2. W was born to Mr and Mrs S on 24 February 1990, so he is now 18 years old. I refer to them under initials because this court, on granting permission to appeal, directed that their names be anonymised and we have continued that direction against any publicity which will identify the family. I may sometimes refer to the parents, whose marriage has sadly recently broken down, as the father and the mother. They have two other children: R, a daughter now nearly 20 years old and I, another girl, who is just ten.
3. What has blighted this family's life is the fact that W is severely autistic. He was diagnosed to be suffering from a severe form of autism at the age of three. Features of that illness are described in the pleadings and they come, I think from his headmaster, in these terms, that the illness can induce:
   

"Sensory and emotional hypersensitivity [which] are liable to make [autistic individuals'] tolerance of all kinds of stimulation low. They may be compulsive, obsessive and prone to acute anxiety attacks, sometimes sinking inwards into calming routines and at other times lashing out furiously."

This family has suffered from W's frenzied attacks and he has himself suffered from the harm he has inflicted on himself.

4. In 1994, when he was four years old, he began to attend a special school, Whitefield, which specialises in the education of autistic children. His attendance was funded by the local education authority for the area in which the family lives. It is a day school not too far away from the family home and so W has lived at home with his family.
5. Father is a solicitor for much of his time in private practice with a considerable experience of defending professional negligence claims. He is, I believe, now employed in-house as a lawyer with an insurance company. He is obviously intelligent and charming. Mrs S addressed us briefly and made the most favourable impression on us. They are clearly devoted to W and to their daughters and they have done, and they continue to do, everything they possibly can for their children.
6. W himself has been the subject of several statements of his special educational needs. For a number of years, father, involved as he has been with his wife in doing all they can for W, served as a governor of the school and in the early years I have the impression that the family's relationship with the school was harmonious and that W's progress was satisfactory. Sadly, however, over the course of time disaffection with the way that W was being educated grew and there were increasing differences between Mr S and the school over the qualities of the facilities there offered and the nature of the education the child was receiving.
7. By September 2001 matters had so disintegrated that W, then 11 years old, was excluded because of his disruptive behaviour. He was excluded again in November 2001 and this time was absent for about 61 days. After an appeal he was allowed to return but was taught in isolation from the other pupils. Moving forward in time, his name was removed from the register in July 2005 when aged 15 and for one reason or another he has had no or little education since then.
8. One can sense just how difficult life has been for all members of the family. They have had to cope with a severely disabled and disruptive son and brother. They have fought on numerous fronts and in many battles, still ongoing, to secure a proper education for him. One can only admire their courage and their resilience.
9. This growing sense of dissatisfaction eventually led the family to bringing proceedings on 21 September 2004 against the headmaster as the first defendant and the board of governors of the school as the second defendant. Although Mr S is not without relevant experience of litigation, I hope he won't mind my observing that perhaps his drafting skills were not deployed at their highest levels when he came to settle his Particulars of Claim. They run to some 34 pages and the document is, in places, diffuse to the point at times of almost of being impenetrable, but at the heart of it lay a claim by W, with mother acting as his litigation friend, for damages for negligence, pleaded in a manner which has revealed enough to bring it within the recognised breaches of duty owed by the school to a pupil as acknowledged Phelps v Hillingdon LBC [2001] 2 AC 619.
10. There is no complaint made about the viability of the central cause of action for alleged negligent failure to provide W with an appropriate education. Without going into the detail, because it is unnecessary in this judgment to do so, there were other claims in the pleading (as originally drafted) to which the defendants did take objection: for example, the claims by the parents, mother and father, and by the sisters, R and I, for damages for stress and personal injuries alleged to have been suffered by them as a result of W's behaviour, exacerbated, as it was said to be, by his inadequate education.

The application to strike out

11. Because of those concerns the defendants applied to strike out parts of the Particulars of Claim on the basis they had no real prospect of success and were frivolous and vexatious. It was alleged that the claims under the Human Rights Act were time barred.

The proceedings before the Master.

12. Master Eyre is the assigned master dealing with this case and he dealt with that application to strike out on 3 June 2005. It appeared to the court that allegations in the Particulars of claim were devoid of proper particulars. The action against the second defendant appeared to be without foundation and was misconceived. There was no means of knowing the claimant's real cause of action, whether it related to tort or negligence or recklessness or misfeasance or corruption or otherwise. The allegations in relation to the Disability Discrimination Act were matters in respect of which the court had no jurisdiction. The human rights claim appeared to be out of time. Moreover there was no medical report or schedule of damages, so the action infringed Practice Direction 16, paragraph 4, of the Civil Procedure Rules and also Rule 3.42(a) and (b) of the Civil Procedure Rules. In other words, the application to strike out was well founded.
13. But the Master took the view, very properly of course, that the claimants should be given the opportunity to remedy those defects that were capable of remedy and, whilst therefore the Disability Discrimination Act claim was struck out, the claimants were given the opportunity to serve Amended Particulars of Claim and the Master gave very helpful guidance as to how that claim should be formulated.
14. That was duly done but it may be that, in an excess of enthusiasm, father not only took the blue pencil to the pleading, but instead added to it, and so other claims were added for misfeasance in public office and that led to the matter coming back to the Master. I should have added that in the order the Master made on 3 June, he directed that the claimants pay the defendant's costs of the day, which he summarily assessed at £7,000. When the matter came back on 15 March 2006, it was ordered that allegations in the Particulars of Claim which were shown as struck through on a copy endorsed by the Master should so be struck out. There remained still the central core of the claim and the claimants were again ordered to pay the defendant's costs, the Master making an interim order for payment of £10,000 by 29 March 2006. He also ordered that, without prejudice thereto, the action be stayed forthwith pending further order, but with liberty to apply.

The appeal to the High Court.

15. The claimants duly sought permission to appeal. There were several interlocutory skirmishes before judges of the High Court. Bean J had to deal with the matter on 31 July and he very helpfully isolated from the confusing application for permission to appeal 14 issues which merited consideration as proper grounds of appeal.
16. That appeal came before HHJ Seymour on 23 and 24 November 2006. Notwithstanding the definition of those 14 points, Mr S sought to advance a further three new points, although he did abandon his argument on three of those identified by Bean J. HHJ Seymour refused permission to appeal on all bar three of the issues identified by Bean J and refused permission to appeal on the additional grounds being advanced by Mr S.
17. So Judge Seymour had to deal with only three matters, on which he granted permission to appeal but then dismissed the appeal. Those issues were: No 5, whether the Human Rights Act 1998 claims relating to the exclusions in September 2001 and November 2001 were statute barred. Issue No 9 was whether in relation to paragraphs 18(a), 20 and elsewhere the claims for personal injury should be struck out on the basis that the claims were not supported by expert evidence and/or on the basis that they were too remote in law in any event. Finally issue 12, whether the claims at paragraph 47 in relation to the third claimant's (that is, W's) timetable and curriculum should be allowed to proceed.
18. HHJ Seymour, sitting as a judge of the High Court, dismissed the appeal. He ordered the mother, father, W and I, to pay the defendant's costs, summarily assessed in the sum of £19,000.
19. There was a separate application that was directed to be heard by him, which was an application made by father to release mother from being the litigation friend of W and I, both of them still minors, and to substitute himself as the litigation friend for those children. It was an application supported by his evidence in which he deposed, perfectly properly, to his experience and knowledge as a solicitor and to his better ability to take the strain of the proceedings than his wife. She supported the change. But, as I have said, Judge Seymour refused to grant that application.

Permission to appeal to this court.

20. Directions were given for an oral hearing of the application for permission to appeal and that indeed was heard and determined by Smith LJ and Rix LJ on 28 June 2007. The order made on that application was that, as I have said, the claimants' names be anonymised; W's application for permission to appeal was granted in relation to issues 5, 9 and 12. The applications of mother and father and the two girls to re-open issues that had been struck out by Master Eyre and refused by HHJ Seymour under the Taylor v Lawrence CPR 52.17 jurisdiction were refused.
21. The application by Mr and Mrs S for father to replace mother as litigation friend was adjourned to this court. Also adjourned to this court was some sort of application to lift or appeal against the stay of proceedings ordered by Master Eyre. The application by the mother and father, W and I (R having dropped out of the proceedings by now) for permission to appeal the costs order, was adjourned to this court. If we granted permission on those matters in which permission had been adjourned, the appeal was to follow.

The hearing before us.

22. It may be convenient to summarise the issues left to this court. They are: one, whether W's claim for damages under the Human Rights Act can survive; two, whether his claims for personal injury should be struck out; three, whether his claim based on the defects in the school's timetable and curriculum should be allowed to proceed; four, whether permission should be given to appeal Judge Seymour's order that the claimants pay the cost of that appeal; five, whether the stay on proceedings ordered by Master Eyre should be lifted or set aside; six, whether permission should be given to appeal HHJ Seymour's refusal to appoint father in the place of mother as a litigation friend for W and I.

The human rights claim.

23. It will be recalled that the fifth issue identified Bean J to be determined on the appeal in the High Court was whether the Human Rights Act 1998 claims relating to the exclusions in September 2001 and November 2001 were statute barred. HHJ Seymour granted permission to appeal on that on the ground that because he was concerned that W was still a child and suffering from a severe disability, that might be ground upon which the court might be persuaded to extend time for pursuing claims under the Human Rights Act. Subsection (5) of that Act provides as follows:

"(5) Proceedings under subsection (1)(a) must be brought before the end of --

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."

24. The judge accepted the respondents' argument that, if it were intended by Parliament to make provision in the Human Rights Act 1998 similar to the provisions in section 28(1) of the Limitation Act 1980 -- that is to say, in effect, that it was sufficient ground for extending time for making a claim under the Human Rights Act that the intending claimant was under a disability at the time the matters were complained of accrued -- then Parliament would have so directed in Human Rights Act, but Parliament did not do so. He concluded therefore that the fact that the claimant was a child and under a disability was not of itself sufficient to justify the court extending time.
25. Since that order was made this court has decided the case of A v Essex County Council [2008] EWCA Civ 364, in which the claimants essential case was identified by my Lord, Sedley LJ, to be that:

"…for want of even minimally suitable provision for his education, he was shut out of the state system for 18 or 19 months. The consequences are said to have amounted to inhuman or degrading treatment and an unjustified disruption of his private and family life, as well as to discrimination in the enjoyment of the A2P1 right [the right that is conferred by Article 2 of the first protocol]."

26. The asserted systemic failure lay in the proposition that the exclusion was unlawful and that nothing amounting to alternative education was provided or offered, with the result that a substance of the A2P1 right was lost. Sedley LJ held in paragraph 12:

"I do not consider that it was possible to spell out of this unhappy interlude, with its undoubtedly adverse consequences for both A and his parents, either a failure of the education system or a denial of access to it."

27. It followed that A's claims under Article 2 of the first protocol was incapable of succeeding, since the decision of the House of Lords in Ali v Lord Grey School [2006] 2 AC 363, nor was any other article of the convention arguably violated.
28. Father has heroically attempted to distinguish that case; but, faced with the points put to him in argument by the court, he had to concede, properly in my judgment, that the cases really are indistinguishable and that the claim for damages for breach of the Human Rights Act was unarguable. That makes it unnecessary to consider any further whether the judge was correct in refusing to extend time.
29. The argument concluded yesterday, but overnight Mr S has submitted further written submissions to us in which he draws attention to the amended particulars of claim, which were amended after the first hearing before Master Eyre on 1 June 2005, as I have already set out. By that amendment, he seeks to plead that, on 21 July 2005, the headmaster removed W's name from the school's admissions register, knowing that he had no lawful basis for so doing and in breach of the Education Pupil Registration Regulations 1995, which stipulate the only circumstances in which a pupils name can be removed from a school admissions register. He alleges that the headmaster thereby breached W's right to an education under Article 2 of the first protocol. His written submission is that that claim was made within the 12-month time limit stipulated by section 7(5).
30. There are several reasons why I am not prepared to entertain this further submission. The first may be technical, even unduly technical in nature; the particulars of claim were served on 18 January 2005, before this further exclusion from the school. Amended particulars of claim were then served relating to the later exclusion, but allegations made by amendment must date back to the original time of issue of the pleading, and, if a claim was to be made to subsequent events, the proper course of action is to issue a second claim. That was not done. That I acknowledge as a narrow and, to that extent, unsatisfactory ground to dispose of this point. The second objection is, however, fatal to the application. Whether or not this amended claim can stand and whether or not it was brought within a year of the date on which the act complained of took place, the claimant still has the insuperable obstacle in his path that he cannot establish the systemic failure which is necessary to found an action for breach of Article 2 of the first protocol for the reasons set out above. That claim would have to be struck out in any event.
31. The third objection is that this court cannot entertain an application for permission to appeal against a refusal of permission to appeal, because section 54(4) of the Access to Justice Act 1999 precludes it. We simply have no jurisdiction. There is, however, a limited right to make a second application under the Taylor v Lawrence jurisdiction, now embodied in CPR 52.17. The Court of Appeal was invited to consider that when dealing with the application for permission which has led to the matter coming before this, the full court. His applications, in that regard, including applications relevant to these new points, were all dismissed. It is therefore not open to the claimants to endeavour to argue this matter on the basis that Issue 6 in the determination of Bean J raised an issue as to whether or not there was any private law or course of action in respect of the 2005 exclusion.
32. In today's further written submissions, father also drew attention to the fact that there are allegations of breaches of Article 3 and 8 of the Convention in the pleadings. I have been fully aware of that. If I dealt with it peremptorily in the paragraphs above, I can spell it out more fully here. Similar arguments were address to this court in A v Essex County Council, but the court held that Article 3 was not arguably engaged in that case, and, since there is no distinction between that case and this, it is not arguably engaged here. The same was held to be true in the cases of alleged violation of Article 8. The court held that to manifest a denial of respect of the child's family and private life, the defendant county council would have had, at the very least, to do something or omit to do something, which the duty of respect called upon it to do or refrained from doing. There is no such act or omission in failing the primary Article 8 rights there, nor can there be in this case. It follows that all claims under the Human Rights Act must be dismissed.
33. Bean J's identification of the second issue, namely the adequacy of the pleading of the personal injury claim, was whether, in relation to paragraphs 18(a), 20 and elsewhere, the claims for personal injury should be struck out on the basis that those claims were not supported by expert evidence and/or on the basis they were too remote in law in any event.
34. HHJ Seymour held in paragraph 48 of his judgment:

"…there is no plea in the amended particulars of claim of any details of personal injury suffered by [W] fit to give rise to a serious issue which could be tried at trial, on his behalf, as to whether he has suffered personal injuries or not."

35. Mr Clive Lewis, Queen's Counsel, who has been brought in to lead Mr Gerard Clarke, who appeared alone in the court below, invites us to see the context in which those claims are made. Paragraph 18(a) of the particulars of claim pleads that the defendants were negligent in failing to ensure that extra resources from a sufficiently experienced teacher were obtained for W, with the result that his challenging behaviour was worse than it they otherwise would have been and had an increased impact. It was originally alleged that this, in turn, resulted in all the claimants suffering stress and minor personal injury. The claim of the other claimants has been dismissed and is not before this court, so the question is whether that claim for stress and damages for minor personal injuries be sufficiently pleaded. In paragraph 20 the allegation of negligence was that the school failed to prepare an appropriate effective integration plan for W, and it was alleged in paragraph 21(6) that, in consequence to that negligence, W's challenging behaviour was far worse that it otherwise would have been and had an increased and detrimental impact on him and the claimants.
36. The allegation was repeated and this in turn resulted in all of the claimants suffering stress and minor personal injury. Finally in paragraph 77 it was alleged that, in consequence of the defendant's negligence, the claimants all suffered personal injuries. Particulars were given for W, that he suffered:

"Extreme anxiety and distress; extreme stress and depression; physical injuries resulting from constraint measures being adopted him by third parties; humiliation and loss of dignity. Full particulars of [W's] injuries will be provided in due course pursuant to disclosure and exchange of expert evidence."

37. Mr Lewis invites us to uphold the judge for three reasons. First, despite having been given ample opportunity to remedy any defects in the pleading, that opportunity was not taken. Nowhere does the pleading identify what the nature of those injuries was. Father explained, in his moving submissions to the court, that the consequence of this disruption in W's education was that the boy came under added stress, which led to him harming himself more than he would have done, simply in consequence of his autistic condition. He painted an horrific picture of W in the period after exclusion from school, running naked down the road, defecating in the house and smearing faeces on the walls and biting his hands and causing himself harm.
38. The pleading could easily have stated that self-harm. I would ordinarily be loath to strike out a pleading for want of giving sufficient particulars of such an allegation, but here Master Eyre did give him the opportunity, following his order of 3 June 2005, to state the basis on which the claimant sought to make the defendants liable for the consequences of their negligence. Upon 15 March 2006, the Master explained why he was striking out the relevant parts of the claim, because the pleading failed to comply with the directions already given. Paragraph 77 itself contained the acknowledgement that full particulars of the injuries would need to be provided; yet they have still not been provided. The detail is required by practice direction 16 ED.4, which provides as follows:

"4.1 The particulars of claim must contain:

(1) the claimant's date of birth, and

(2) brief details of the claimant's personal injuries.

4.2 The claimant must attach to his particulars of claim a schedule of details of any past and future

expenses and losses which he claims.

4.3 Where the claimant is relying on the evidence of a medical practitioner the claimant must

attach to or serve with his particulars of claim a report from a medical practitioner about the

personal injuries which he alleges in his claim."

39. No application was made on W's behalf to Master Eyre for a further indulgence in order to provide them; nor was any such application made to HHJ Seymour; nor was such an application made before us. There comes a point in time when the court has to say enough is enough, and in my judgment the judge cannot be criticised for taking the stringent view he did.
40. The second deficit from the pleading is the failure to serve a medical report. Master Eyre, on 3 June 2005, drew specific attention to the fact that there was no such medical report and that the claim accordingly appeared to infringe practise direction 16(4) of the Civil Procedure Rules. On 15 March 2006 he held that the pleading completely failed to comply with that direction. Once again, father has done nothing to remedy that defect. He simply asserts that the practice direction is in fact conditional and requires compliance only where the claimant does rely on the evidence of a medical practitioner, and here he does not rely on medical evidence, asserting that his own evidence on his son's behaviour will be sufficient to prove the matters complained of. But he concedes that the pleading was less good than it should be. Both the Master and the judge held that it was not good enough. This court has to be satisfied that they were plainly wrong in coming to that conclusion, and I cannot find that the judge has erred in that way.
41. The truth of the matter is there is, very sadly no doubt, that father has become so overwhelmed by this and other litigation and other proceedings relating to W, that he simply has not focused on this aspect sufficiently to supply the information. His own pleading, he acknowledges, has eventually to be provided. The purpose of pleading details of the personal injuries and giving a medical report in support of it is to enable the defendants to know the case they have to meet. There they would not have the faintest idea of what personal injury this unfortunate boy has suffered.
42. In the light of those conclusions, I do not consider it necessary to express a view on Mr Lewis' third submission that the claim for damages for personal injuries is too remote, in the sense that it is not reasonably foreseeable that acts of negligence, whatever they may be, can cause psychological consequences; that the stress would then cause different and more harm than would otherwise be suffered by an autistic child.
43. So to timetabling and curriculum. The question here was whether the claims at paragraph 47, in relation to W's timetable and curriculum, should be allowed to proceed. Paragraph 47 pleaded that the defendants negligently failed to ensure that W's timetable and curriculum were appropriate for maximising his potential and/or meeting his special education needs. The particulars complained that the defendants failed to exempt W from the national curriculum and should instead have prepared an individual education plan for him. In argument before us, father gave us, as an example of a failure in timetabling, the insistence that there is a regular lesson with a workbasket to improve W's numeracy. In general, the negligence alleged is that the school carried on doing the same things when it was clear, or ought to have been clear, that they were not working. The judge held, in reliance of Clarke v University of Lincolnshire and Humberside [2000] Vol 1 WLR 1988, that those matters were not justifiable in the courts.
44. Clarke was a claim for damages for breach of contract brought by a student against her university for breach of contract, to the effect that the university's appeal board had misconstrued the meaning of plagiarism when they failed on that ground and that, when on appeal, they gave her a mark of nought -- that mark was beyond the limits of academic convention. The court held that disputes suitable for adjudication under the internal procedures of the institution may be unsuitable for adjudication in the courts, because there are issues of academic or pastoral judgment, which the university is equipped to consider in breadth and in depth, upon which any judgment of the courts would be jejune and inappropriate. As Lord Woolf said in paragraph 29: "The court will not involve itself with the issues that involve making academic judgments."
45. In my judgment that reasoning applies here. I see no reasonable prospect of success for this claim. Father acknowledges that these issues give rise to questions of academic judgement on which opinions will differ. This is virtually acknowledged in the particulars of claim itself:

"Instead of introducing [W] to a settled routine the School failed to ensure that his timetable was finalised until several weeks after the start of the term. Constant changes to the… timetable occurred as a result, which impacted adversely on [W]'s behaviour…"

46. Yet when there was a regular routine of the kind described by father to us in argument, the school is criticised. Since it is conceded that these questions give rise to a difficult balance of judgment on which opinions may legitimately differ, I cannot see how the claimant will ever satisfy the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 583) and establish that the school did not act in accordance with a practice accepted as proper by responsible bodies skilled in teaching autistic children.

Costs.

47. Judge Seymour saw no reason why costs should not follow the event and he ordered accordingly. For the respondents to succeed on this point they have to establish that there is a real prospect of success in showing that the judge was plainly wrong not to find some unreasonable conduct on the part of the respondents to justify depriving them of their costs. Mr S relies upon their refusal to enter into a standstill agreement which he proposed in his letter before action, written on 6 May 2004 and which was refused on 8 June 2004 on the basis that the claimants had had sufficient time to bring that claim and had not provided any good reason for that request. I cannot see why that refusal should give rise to any relevant complaint for the purposes of CPR 44.3. The main burden of the applicant's argument was directed at the failure to engage in mediation. This was requested by father on 20 August 2004 before the claim was issued and rejected on 10 September 2004 because it was considered not then to be appropriate. The claim was issued on 21 September 2004. On 1 June 2005 Master Eyre made his first order on the application by the respondents to strike out the offending parts of the particulars of claim. On 23 August father again invited the respondents to agree to the dispute being referred to mediation and the respondents replied through their solicitors on 24 June 2005, stating that mediation was not, in their view, appropriate at that stage for the following reasons. First it was said that the particulars of claim were wholly inadequate. There had been no exchange of documents, witness statements or expert evidence and in those circumstances mediation is considered to be premature. Secondly, it was asserted that the respondents were firmly of the view that the claimants had no reasonably arguable claim and reminded them of certain comments Master Eyre had apparently made in that regard. Hence a fairly firm rejection of making any offer of compensation. But more importantly, in my judgment, the respondents asked whether the claimants were seeking "any non-legal remedies" which the respondents offered to consider. This is important because at that time the claimants were more intent on obtaining some satisfactory education for W than in obtaining damages, as father admitted to us on this appeal. Having indicated their reluctance to mediate, the respondents nevertheless invited mother and father to let them know whether they still considered that the matter could be resolved by mediation so that final instructions could be taken. They also asked for mother's confirmation that she was inviting mediation, as a mediation concerning father's claim alone would clearly be pointless as it was said to be wholly devoid of merit.
48. There was no response to those requests for elucidation. Both sides place some reliance on Halsey v Milton Keynes General NHS Trust [2004] Vol 1 WLR 3002, a case which I had hoped would be more encouraging of mediation than discouraging of it. Nevertheless some limits were placed on the Court's ability to mark its disapproval of a failure to mediate by ordering costs or not ordering costs as the case may be. The burden of showing that there should be a departure from the general rule that costs follow the event is a burden which lies on the unsuccessful party. The fact that a party reasonably believes he has a strong case is relevant to the question whether he has acted reasonably in refusing ADR. The fact that a party reasonably believes he has a watertight case may well be sufficient for the refusal to mediate. What the unsuccessful party has to establish is to show that there was a reasonable prospect that the mediation would have been successful.
49. It seems to me that the applicant has real difficulties in showing he has a real prospect of successfully reversing the judge's order on costs. While I am all in favour of mediation -- even before the action begins; I have often said so -- I cannot castigate the respondents for their pre-action refusal to engage in the process in this case. They were entitled to see how the claim was eventually made and to take a stand accordingly. The applicant's problem about the second request for mediation is that it foundered because the claimants unreasonably failed to respond to the perfectly proper request for further information that was being sought, particularly as to the non-legal remedies that were desired. There was no response from mother as to her willingness to participate. The respondents can hardly be held to blame. At that stage the Master had required the claimants to put their house in order and later struck out swathes of the particulars of claim, with the result that there was judgment for the defendants on all claims except W's claim. That demonstrated the reasonableness of the defendants refusing to mediate in the particular circumstances of this case. In my judgment, the claimants have absolutely no prospect of upsetting that order for costs and I would refuse permission to appeal.

Lifting the stay

50. In the order following the grant of permission, the court adjourned W's application against the stay of proceedings to the full court. This matter does not appear to have been the subject of great argument on that hearing for permission. The stay had been imposed by Master Eyre on 15 June 2006, giving as his reasons the following:

"Further, the first Claimant accepts that the claimants had not paid so much as £1 of the £7,000 in costs awarded to the Defendants in June last, nor is he prepared to give any justification for that.

Taking that fact with the approach adopted by the Claimants' side to their allegations as a whole, there is reason to doubt the bone fides of this action.

The action will accordingly be stayed pending further order, with liberty to apply."

51. Mr Lewis points out that there was no application to appeal that order. Certainly if it was hidden away in the papers it was not something which was advanced specifically to Bean J, who did not identify it as an issue that should be dealt with, nor was it one of the extra arguments sought to be placed before Judge Seymour. For my part, I cannot see what jurisdiction this court has to set that order aside. The proper procedure now is to apply to Master Eyre to lift the stay. Father accepts that, and so he does not press that matter before us; he was right to do so.
52. Finally, substituting father for mother as W's litigation friend. Judge Seymour refused so to order, saying:

"I have said more than once that this is a very, very sad case. Not the least sad aspect of it is that it is plain to me, having listened to Mr [S] make his applications over a day and a half, that he has become very, very, very closely involved in grievances which he considers he and his family have against all of the defendants. He has, I regret to say, become so intimately involved in the claims that he does not have that dispassionate and objective approach to assessing what claims can properly be pursued on behalf of his son and what not, that a litigation friend needs to have in order that the litigation friend can fairly and competently conduct the proceedings on behalf of his son. In those circumstances it would not be appropriate to exceed to the application that Mr [S] should be substituted for Mrs [S] as the litigation friend of their son, W, and so I refuse that application."

53. That may seem to be a harsh judgment to have passed on Mr S, who has so passionately pursued his son's cause. Sadly, I fear it is an accurate one. Mr S conducted this appeal with exemplary courtesy, and, in making the concessions he has, with admirable soundness of judgment. But that is only part of the history of this case. The judge made a finding of fact with which this court cannot interfere unless it is shown to have been plainly wrong. That is always a serious obstacle for an applicant for permission to appeal. It is too high a hurdle for this applicant to overcome in this case.
54. We heard mother speak movingly of the injustice she perceives has been done to her son and indeed others who suffer a disability. With very little help from the outside agencies she has had to cope with the difficulties in caring for W, which we can barely imagine. She had been dependant on her husband for his legal expertise, as a solicitor well versed in professional negligence claims, to promote the interests of their son. She cannot do so alone. I have the greatest sympathy for her predicament.
55. There is another sad feature of the case. The marriage of mother and father has broken down and there are divorce proceedings pending in the county court. There are issues about father's contact of W, and apparently the county court has referred the appointment of a litigation friend for W to the Court of Protection. W is now an adult, but he remains a protected party by virtue of his lack of capacity to conduct the proceedings himself. The Court of Protection may -- I say no more than that -- be able to assist. I am clear, however, that there is no real prospect for upsetting the judge's order and I would refuse permission to appeal on that ground.

Conclusion

56. I would wish to acknowledge, as I know other members of the court would, the restrained and courteous presentation of the case by Mr S. Behind it, as we are well aware, lie almost two decades of distress and eventual family break up, centred on the child's severe autism and family's endeavour to do the best that could be done for him. To have made as cogent and dispassionate a presentation of his case as Mr S has done in this court, as well as to have spoken as briefly and sincerely as Mrs S has done in support of him, is a rarity among litigants in person and far from ubiquitous even in professional advocates.
57. We are sorry we cannot do more to help, but, as Mr S was the first to recognise, this claim is not about money and there are limits as to what else the court can do to address grievances however real. When granting permission to appeal, this court urged the parties to consider alternative dispute resolution. The respondents were willing to engage in mediation. The parents were not. That is a pity. I strongly urge them to consider this avenue for it may offer a more satisfactory outcome than the pursuit of litigation.
58. But in my judgment, on the three issues for which permission has been granted, the appeal should be dismissed. On the two issues in respect of which there have been applications for permission to appeal, they too should also be dismissed.

Lord Justice Sedley:

59. I agree.

Lord Justice Rimer:

60. I also agree.

Order: Appeal dismissed