Case No: A3/2016/3451
Neutral Citation Number: [2017] EWCA Civ 1998
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Chancery Division, Bristol District Registry
Mr Justice Newey
B30BS221
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/12/2017
Before :

LORD JUSTICE RUPERT JACKSON
LORD JUSTICE LEWISON
and
LORD JUSTICE HAMBLEN

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Between :

	Kenneth John Richards (by his deputy & litigation friend, Anne Minihane)	Claimant/ Respondent	
	- and -		
	(1) Worcestershire County Council
(2) South  Worcestershire Clinical Commissioning Group 	Defendants/Appellants	

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Ms Jenni Richards QC & Ms Katie Scott (instructed by Burroughs Day LLP) for the Claimant/Respondent
Mr David Lock QC & Mr Lee Parkhill (instructed by Worcestershire County Council Legal Services) for the Defendant/Appellant

Hearing date : Wednesday 1st November 2017

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Judgment
Lord Justice Rupert Jackson : 
1.	This judgment is in seven parts, namely: 

Part 1 – Introduction
	
Paragraphs 2 – 11	

Part 2 – The facts, actual or assumed
	
Paragraphs 12 – 31	

Part 3 – The present proceedings
	
Paragraphs 32 – 44	

Part 4 – The appeal to the Court of Appeal
	
Paragraphs 45 – 49	

Part 5 – Does this claim contravene the exclusivity principle?
	
Paragraphs 50 – 68	

Part 6 – Did the defendants’ non-compliance with section 117 of the Mental Health Act 1983 give rise to a private law claim?
	
Paragraphs 69 – 84	

Part 7 – Executive Summary and Conclusion
	
Paragraphs 85 – 90
	
Part 1 – Introduction
2.	This is an appeal by two public authorities against a refusal to strike out the claimant’s claim as an abuse of process. The principal point of law which arises for decision is whether (following O’Reilly v Mackman [1983] 2 AC 237) the claimant was entitled to proceed under Part 7 of the Civil Procedure Rules rather than by way of judicial review. 
3.	The claimant has suffered a head injury affecting his mental health. He therefore brings this action by his deputy and litigation friend, Ms Anne Minihane. 
4.	The first defendant, as its name suggests, is responsible for the delivery of social services in Worcestershire. Both defendants are responsible for delivering after-care services under section 117 of the Mental Health Act 1983 in South Worcestershire. The South Worcestershire Primary Care Trust was the second defendant’s predecessor body with this responsibility. Nothing turns on the distinction between those two bodies. Therefore all references in this judgment to the second defendant are to the body which had functions under section 117 at the material time. 
5.	In this judgment I shall refer to the Rules of the Supreme Court 1965 (as amended) as “RSC”. I shall refer to the Civil Procedure Rules 1998 (as amended) as “CPR”. “CPN” is an abbreviation for community psychiatric nurse. I shall refer to Community Care Management Services Ltd (a company based in Shipston-on-Stour, Warwickshire) as “CCMS”. 
6.	I shall refer to the Mental Health Act 1983 as “the 1983 Act”. The provision in the 1983 Act which is central to this appeal is section 117. That provides: 
“117 	After-care.
(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and whether or not immediately after so ceasing leave hospital.
(2) It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject.”
The references in that section to “Primary Care Trust” should be taken as references to the local NHS clinical commissioning group with effect from 1st April 2013. 
7.	Between 2002 and 2007 section 25A of the 1983 Act provided: 
“25A	Application for supervision. 
(1) Where a patient – 
(a) is liable to be detained in a hospital in pursuance of an application for admission treatment; and
(b) has attained the age of 16 years, 
an application may be made for him to be supervised after he leaves hospital, for the period allowed by the following provisions of this Act, with a view to securing that he receives the after-care services provided for him under section 117 below. 
(2) In this Act an application for a patient to be so supervised is referred to as a “supervision application”; and where a supervision application has been duly made and accepted under this Part of this Act in respect of a patient and he has left hospital, he is for the purposes of this Act “subject to after-care under supervision” (until he ceases to be so subject in accordance with the provisions of this Act). 
(3) A supervision application shall be made in accordance with this section and sections 25B and 25C below. 
(4) A supervision application may be made in respect of a patient only on the grounds that – 
(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment; 
(b) there would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited, if he were not to receive the after-care services to be provided for him under section 117 below after he leaves hospital; and
(c) his being subject to after-care under supervision is likely to help to secure that he receives the after-care services to be so provided. 
(5) A supervision application may be made only by the responsible medical officer. 
(6) A supervision application in respect of a patient shall be addressed to the Primary Care Trust or Health Authority which will have the duty under section 117 below to provide after-care services for the patient after he leaves hospital. 
(7) Before accepting a supervision application in respect of a patient a Primary Care Trust or Health Authority shall consult the local social services authority which will also have that duty.”
8.	Section 25B set out the duties of the responsible medical officer who made an application under section 25A. Section 25D enabled the responsible after-care bodies to impose requirements on the patient as to place of residence, attendance at appointments and so forth. 
9.	Sections 25A – D of the 1983 Act were repealed on 3rd November 2008.
10.	Section 7 of the 1983 Act, as amended, provides: 
“7 Application for guardianship.
(1) A patient who has attained the age of 16 years may be received into guardianship, for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as “a guardianship application”) made in accordance with this section. 
(2) A guardianship application may be made in respect of a patient of the grounds that – 
(a) he is suffering from mental disorder, …of a nature or degree which warrants his reception into guardianship under this section; and
(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received. 
(3) A guardianship application shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include – 
(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraph (a) of that subsection; and
(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (b) of that subsection.
...
(5) The person named as guardian in a guardianship application may be either a local services authority or any other person (including the applicant himself); but a guardianship application in which a person other than a local social services authority is named as guardian shall be of no effect unless it is accepted on behalf of that person by the local social services authority for the area in which he resides, and shall be accompanied by a statement in writing by that person that he is willing to act as guardian.”
Section 8 of the 1983 Act, as amended, provides: 
“8  Effect of guardianship application, etc.
(1) Where a guardianship application, duly made under the provisions of this Part of this Act and forwarded to the local social services authority within the period allowed by subsection (2) below is accepted by that authority, the application shall, subject to regulations made by the Secretary of State, confer on the authority or person named in the application as guardian, to the exclusion of any other person – 
(a) the power to require the patient to reside at a place specified by the authority or person named as guardian; 
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training; 
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified.”
11.	Having set out the relevant statutory provisions, I must now turn to the facts. Since this is an application to strike out I shall assume, without of course deciding, that the facts pleaded by the claimant are correct. 
Part 2 – The facts, actual or assumed
12.	The claimant was born in March 1964, so is now aged 53. In April 1984, when aged 20, he sustained serious injuries to his legs and head in a road traffic accident. He was in hospital for four months, but then discharged himself against medical advice. 
13.	In litigation against the driver responsible for the accident, the claimant recovered damages in the region of £2 million. I do not know the precise figure nor how that sum was made up. A deputy appointed by the Court of Protection has at all times managed those funds. The current deputy is Anne Minihane, a partner in Clarke Wilmott Solicitors. She has been in post since 2012. 
14.	The claimant’s deputy engaged CCMS to provide services for the claimant. CCMS assigned Rebecca Strange to be the claimant’s care manager. CCMS arranged community-based rehabilitation and various residential placements for the claimant. Unfortunately all these placements broke down. On occasions the claimant was violent or caused damage to property, leading to police intervention. 
15.	There were two occasions when the claimant was subject to compulsory detention in Newtown Hospital pursuant to section 3 of the 1983 Act. The first occasion was in May 1999. The second occasion was in August 2004. 
16.	During the second period of detention Dr Richard Crellin oversaw the claimant’s treatment. He was the “responsible medical officer” for the purposes of the 1983 Act. 
17.	During September 2004 there were discussions between Dr Crellin, Rebecca Strange, the claimant and representatives of the defendants. There is a dispute between the parties as to what was said and agreed. For the reasons previously stated, I shall assume that the claimant’s version of events is correct. 
18.	It was agreed that following the claimant’s discharge from hospital the defendants would provide after-care services for the claimant pursuant to section 117 of the 1983 Act. These after-care services would comprise: 
i)	Consultant/SHO staff grade supervision and assessment; 
ii)	Social worker and CPN assessment and care; and
iii)	The services that had been discussed and agreed with the care manager, which embraced the provision of extensive support services to be provided to the claimant whether by buddies or in a residential setting. 
19.	On 21st September 2004 Dr Crellin made a written application pursuant to sections 25A and 25B of the 1983 Act for the provision of those after-care services by the defendants pursuant to section 117 of the 1983 Act. The defendants imposed conditions pursuant to section 25D, requiring the claimant to live at the places specified in the care plan and to attend medical appointments. 
20.	An official record (at page S23 of the bundle) dated 21st October 2010 states: 
“The bodies responsible for the patient’s after-care under section 117 of the Act are
WORCESTERSHIRE MENTAL (HEALTH) PARTNERSHIP NHS TRUST
and 
WORCESTERSHIRE COUNTY COUNCIL
They were informed about the acceptance of this application on 21.10.04 and 21.10.04 respectively.”
21.	The initial care plan, which was operated when the claimant was discharged from hospital, was that he should live at home with the support of “buddies”. That soon broke down. The claimant took out the gas heater without disconnecting the gas. He also suffered financial abuse. 
22.	In those circumstances, a new care plan was devised under which the claimant went to live at the Community of St Antony and St Elias in Devon (“St Antony”). The claimant lived in that residential placement until April 2006. 
23.	In April 2006 the care plan was revised. The claimant went to live in a property between Malvern and Worcester. He had the support of full-time carers or buddies. These arrangements worked well for some years. 
24.	Throughout the period 2004 to 2008, Dr Crellin as the claimant’s responsible medical officer made regular applications under sections 25A and 25B of the 1983 Act to renew the provision of after-care services pursuant to section 117. In each instance the application recorded that the bodies responsible for the claimant’s after-care services under section 117 had agreed to provide such care. 
25.	In 2008 Parliament repealed sections 25A to 25D of the 1983 Act, as set out in Part 1 above. In July 2009 Mr Richard Jansiss, a mental health social worker employed by the Worcestershire NHS Trust, applied for a guardianship order pursuant to section 7 of the 1983 Act, as amended. In his application he stated: 
“Mr Richards is clearly mentally ill and his diagnosis of frontal lobe brain injury and bi-polar mood disorder is reflected in his behaviour and presentation. He had little insight into his mental illness. It is my opinion that Mr Richards’ present condition meets the criteria for a Guardianship Order under the Mental Health Act in that he is suffering from a mental disorder of a sufficient nature or degree and that Guardianship is necessary in the interests of himself and others. 
If a Guardianship Order is made, the power to decide where Mr Richards should live is probably most relevant at this time. It will provide authority to ensure he does not reside at RE’s home or at least does not stay an excessive number of nights there while it is having a detrimental effect on RE’s health. A Guardianship Order may also be occasionally useful in ensuring Mr Roberts attends appointments and that staff can have access to him at his home. Underlying this a Guardianship Order will give the Mental Health Services an authoritative framework for its relationship with Mr Richards. It is hoped he will understand this and so respond constructively.”
26.	The director of social services, an employee of the first defendant, became the claimant’s guardian. In the exercise of his powers under section 8 of the 1983 Act, as amended, the director required the claimant to live at specified addresses and attend specified medical appointments, all as agreed with Ms Strange, Dr Crellin and other individuals responsible for the claimant’s care. 
27.	In October 2009 Dr John Vaughn replaced Dr Crellin as the responsible medical officer treating the claimant. 
28.	On 15th April 2010 Mr Jansiss applied to renew the guardianship order. Dr Vaughan provided a medical report in support of that application. Dr Vaughan wrote: 
“He suffers from the effects of an acquired brain injury, namely frontal lobe damage and organic bipolar affective disorder. He requires 24 hour care and supervision. He lacks insight into his disabilities and the consequences of his actions. The guardianship order enables him to receive the care and monitoring needed for him to manage in the community. He has in the past discontinued medication, behaved in a reckless and threatening manner and placed himself in a position of exploitation.”
29.	The guardianship order was duly renewed in 2010 and 2011. In 2012 a new care plan was drawn up for the claimant, which was implemented in 2013. 
30.	Let me now turn to the financial arrangements. The claimant’s deputy paid £137,911.00 to St Antony between 2004 and 2006. The deputy paid £506,734.00 to CCMS for care services provided to the claimant between 2004 and 2013. In 2013 the defendants took over the funding of all the care services provided to the claimant under the guardianship order and pursuant to section 117. 
31.	Ms Minihane, the claimant’s present deputy, takes the view that her predecessors ought not to have made the payments mentioned in the previous paragraph. She maintains that the defendants were under a duty to pay for all services provided under section 117 of the 1983 Act. In order to recover the payments made by her predecessors, Ms Minihane on behalf of the claimant commenced the present proceedings. 
Part 3 – The present proceedings
32.	By a claim form issued in the Chancery Division of the High Court, Bristol District Registry, on 6th March 2015 the claimant, acting by his deputy and litigation friend, claimed repayment of the care fees which he had expended between 2004 and 2013. In his amended particulars of claim, the claimant maintained that the placement at St Antony and the various care services which he received between 2004 and 2013 were all after-care services delivered under section 117 of the 1983 Act. 
33.	It is not known whether any part of the damages awarded to the claimant following his accident was intended to cover the after-care services which the claimant received between 2004 and 2013. Even if that is the case, however, the claimant maintains that that does not relieve the defendants from paying the costs of those services. This proposition gains support from the Court of Appeal’s recent decision in Tinsley v Manchester City Council [2017] EWCA Civ 1704. 
34.	Both defendants have served a defence and an amended defence, denying liability on a number of grounds. In particular, they deny that the residential placement or other services for which the deputy paid were agreed by themselves or were after-care services under section 117 of the 1983 Act. 
35.	The defendants further deny that the claimant has any legal entitlement to recover the monies which the deputy has paid out, either on the basis of restitution or unjust enrichment. Having regard to the financial arrangements within the National Health Service and the local government, the defendants deny that they have been “enriched” as a result of the payments which the deputy made to St Antony and CCMS. 
36.	The defendants maintain that Dr Crellin was employed by the Worcestershire NHS Trust. They deny that Dr Crellin had authority to bind either of the defendants. 
37.	In summary, the defendants maintain that the claimant, acting by his deputy, chose to arrange his own placement at St Antony and his own care services. Those arrangements were more extravagant than the services which the defendants would have offered. Having chosen to arrange and pay for more expensive accommodation and services, the claimant cannot now recover the costs from the defendants. 
38.	There are clearly many issues of fact between the parties, on which this court cannot comment in the context of the present application. 
39.	Let me turn now to that application. By an application notice dated 11th November 2015 the defendants applied for the following order:
“An order striking out the Claimant’s claim as an abuse of process. The claim challenges the exercise of Defendants’ public law duties, and should have proceeded by way of judicial review. These private law proceedings offend the principle in O’Reilly v Mackman [1983] 2 AC 237.”
40.	Mr Justice Newey (as he then was) (“the judge”) heard that application at the Bristol Civil Justice Centre on 7th March and 10th June 2016. On 28th July 2016 the judge handed down his reserved judgment, dismissing the application. 
41.	The judge identified two issues for consideration, namely: 
i)	Is it in principle possible for the claimant to bring a restitutionary claim? 
ii)	If so, can the claimant’s present claim be pursued otherwise than by way of judicial review?
42.	The judge answered the first question yes. The essence of his reasoning was set out in paragraphs 36 to 39 of his judgment as follows: 
“36. 	In the present case, Mr Richards’ claim seems to be based in part on the simple proposition that payments made on his behalf served to relieve the defendants of liabilities which they ought to have been bearing under section 117 of the 1983 Act. So far as I am aware, however, failure to perform a public law duty has never of itself been held to be an unjust factor for the purposes of a claim in unjust enrichment or a sufficient basis for any other restitutionary claim. It is significant in this context that I was not referred to any case in which a restitutionary claim had succeeded in circumstances comparable to those in the present case.
37.	On the other hand, Mr Richards also alleges that his deputy made payments under mistake, an accepted unjust factor. Since none of the relevant payments was to either defendant, there can be no scope for a conventional claim to recover money paid under mistake. That need not necessarily, however, be fatal to Mr Richards’ claim. Goff & Jones, “The Law of Unjust Enrichment”, 8th ed., suggests (in paragraph 9-02): 
“If defendant was enriched at the claimant’s expense as a result of an operative mistake, then a restitutionary remedy should be available to recover the value of this enrichment, regardless of whether the benefit received by the defendant is the face value of money, the capital value or the use value of some other type of asset, the receipt of services, or the discharge of an obligation which the defendant owed to another party.”
In the circumstances, it is at least seriously arguable that, if the facts asserted by Mr Richards are correct, the defendants have been enriched at Mr Richards’ expense for the purposes of the first and second questions indentified in, for example, paragraph 18 of Lord Clarke’s judgment in Menelaou v Bank of Cyprus UK Ltd [2015] UKSC 66, [2016] AC 176. In fact, Mr Parkhill did not contend to the contrary. 
38.	On the facts, it is not, on the face of it, easy to see how Mr Richards can establish that payments since at any rate 22 June 2006 were made under mistake. After all, Mrs Bunting asserted in a letter to the Council of that date that Mr Richards appeared to be “entitled to funding for the aftercare services he has received and which he is currently receiving” (see paragraph 15 above). The application to strike out was not, however, advanced on the basis that there can have been no relevant mistake and I have not heard argument on the point.
39.	In all the circumstances, the defendants have not demonstrated that Mr Richards cannot have a restitutionary claim against them.”
43.	The judge answered the second question yes. He noted that a number of authorities post 1983 have carved out exceptions to the general rule in O’Reilly v Mackman [1983] 2 AC 237. He concluded that the claimant was bringing a private law claim, which it was appropriate to pursue under Part 7 of the CPR. 
44.	The defendants were aggrieved by the judge’s decision. Accordingly they appealed to the Court of Appeal. 
Part 4 – The appeal to the Court of Appeal
45.	By an appellant’s notice filed on 30th August 2016, the defendants applied for permission to appeal on three grounds, which were in essence as follows: 
i)	The claim should be struck out as contravening the exclusivity principle laid down in O’Reilly. 
ii)	A failure by the defendants to discharge their duty under section 117 of the 1983 Act did not give rise to any private law claim for unjust enrichment or restitution, having regard to X v Bedfordshire County Council [1995] 2 AC 633, O’Rourke v Camden London Borough Council [1998] 1 AC 188 and Clunis v Camden and Islington Health Authority [1998] QB 978.
iii)	The claimant had no reasonable prospect of showing that those making decisions about payment for the claimant’s care had acted under a mistake. 
46.	On 3rd January 2017 Lewison LJ granted permission on grounds 1 and 2. He deferred consideration of the defendants’ application for permission on ground 3 to the full court hearing the appeal. 
47.	The appeal was heard on 1st November 2017. Ms Jenni Richards QC, leading Ms Katie Scott, appeared for the claimant. Mr David Lock QC, leading Mr Lee Parkhill, appeared for the defendants. I am grateful to all counsel for the excellence and clarity of their submissions. 
48.	During the hearing we refused to grant permission on ground 3, essentially for three reasons. First, the point had not been argued below. Secondly, the claimant would need evidence to deal with that point. The claimant had not filed the necessary evidence, as this was not an issue below. Thirdly, factual issues of this character are not suitable for resolution on an application to strike out. 
49.	Having set the scene, let me now turn to the first ground of appeal. That is whether this claim contravenes the exclusivity principle. 
Part 5 – Does this claim contravene the exclusivity principle?
50.	In O’Reilly and Others v Mackman and Others [1983] 2 AC 237, the board of visitors in Hull Prison found four prisoners guilty of disciplinary offences. The prisoners maintained that the board had acted contrary to natural justice. Three of them brought actions by writ in the Queen’s Bench Division. The fourth proceeded by originating summons in the Chancery Division. All four plaintiffs claimed declarations that the board’s decisions were void. The House of Lords, in agreement with the Court of Appeal, ordered that the proceedings be struck out as an abuse of process. The proceedings were abusive, because the plaintiffs ought to have brought their claims in judicial review proceedings under RSC Order 53. There were safeguards for public authorities in Order 53, namely a requirement for leave and a strict time limit for commencing proceedings. The plaintiffs could not bypass those safeguards by commencing ordinary actions. Lord Diplock (with whom Lord Fraser, Lord Keith, Lord Bridge and Lord Brightman agreed) stated the principle of law as follows at 285 D to E: 
“…it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.”
51.	This is the exclusivity principle. Lord Diplock accepted at 285 E to G that there may be exceptions to the exclusivity principle. 
52.	In fact, as later authorities have shown, the exceptions to the exclusivity principle are numerous. An early exception is to be found in the Court of Appeal’s decision in An Bord Bainne Co-Operative Limited (Irish Dairy Board) v Milk Marketing Board [1984] 2 CMLR 584. The Irish Diary Board sought damages and an injunction to restrain the Milk Marketing Board from selling at different prices milk for making butter, according to whether the butter was to be sold to an intervention agency or into the United Kingdom’s domestic market. The grounds were: (a) breach of EEC Regulations 1422/78 and 1565/79 and of the (UK) Milk Marketing Scheme (Amendment) Regulations 1981 and (b) abuse of a dominant position under Article 86 EEC. The defendant applied to strike out the grounds under (a), arguing that such a claim might only be brought by way of judicial review and that to bring a direct action was an abuse of the process of the court under the new rules relating to judicial review. The Court of Appeal, affirming Neill J, dismissed the application.
53.	 Sir John Donaldson MR, giving the judgment of the court, in commenting on the exceptions to the exclusivity principle said at [13]: 
“…In Wandsworth v Winder this court, by a majority, allowed a council tenant to resist a claim for an increased rent on the basis that the council had acted unlawfully in deciding to increase it. Some argument was addressed to us as to the true ratio decidendi. For our part we regard it as an illustration of the fact that the rule in O’Reilly v Mackman is indeed subject to exceptions where, although the principal issue is one of public law, private law rights are involved and it would cause the citizen injustice to be required to use the judicial review procedure.”
54.	Sir John Donaldson MR gave the court’s reasons for dismissing the appeal in [15] as follows: 
“…The Irish Dairy Board’s claim for damages is admittedly based upon alleged private law rights whether or not it is also based upon public law rights. If it can make good its case on the facts and the private law, the court will have no discretion whether or not to grant relief. The Order 53 procedure is wholly inappropriate to any non-discretionary claim and the prosecution of such a claim by the procedure of an action is in no way an abuse, or as we prefer to style it ‘a misuse’, of the process of the court. It is a completely proper use of that process. The claim for an injunction does indeed enable the court to exercise a discretion, but only as to the choice of remedy, i.e. damages or injunction, not as to granting any remedy at all. Although the plaintiffs would, if necessary, have contended that there are no public law issues, we assume for the present purposes that Neill J was right to reject this contention. However, we can see no way in which they can be severed from the private law issues and, if they can, we do not think that they should be. As it was put in argument, the public and private law issues were not even collateral one to another. They are inextricably mixed – ‘homogenised’ is the term which springs to mind in the context of the subject matter of the dispute.”
55.	In Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624, a doctor in general practice challenged a public law decision of his Family Practitioner Committee, which had the effect of depriving him of earnings. The House of Lords held that a litigant possessed of a private law right could seek to enforce that right by ordinary action, notwithstanding that the proceedings would involve a challenge to a public law act or decision; that the plaintiff’s relationship with the committee, whether contractual or statutory, conferred on him private law rights to remuneration in accordance with his statutory terms of service; and that, accordingly, the bringing of an ordinary action to enforce the right to receive that remuneration did not constitute an abuse of process. 
56.	In Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840, the defendant council approved the plaintiffs’ application for improvement grants under section 101 of the Local Government and Housing Act 1989. The council subsequently maintained that the works had not been done satisfactorily and refused to pay the grants. The plaintiffs sued to recover the grants. A district judge struck the claim out on the basis that the plaintiffs ought to have proceeded by judicial review. Mance J reinstated the proceedings and the Court of Appeal upheld Mance J’s decision. 
57.	Lord Woolf MR, with whom Morritt LJ agreed, said at 846: 
“…I would regard this as being a case where the plaintiff’s relationship with a public body whether statutory or contractual would confer on him conditional rights to payment so that the bringing of ordinary actions to enforce those rights was not in itself an abuse of process.”
58.	Lord Woolf MR stated that the factual issues in the Roy claim were more appropriately examined in ordinary proceedings. He deplored the complexities which had developed in determining which cases fell within exceptions to the general rule of exclusivity. 
59.	Shingara v Secretary of State for the Home Department [1999] Imm AR 257 was an unsuccessful claim for judicial review by an EEA national who was denied entry into this country and detained. Brooke LJ (with whom Ward and Evans LJJ agreed) rejected the argument that the appellant could have brought a private law claim. He said: 
“In my judgment Boddington does not authorise a challenge to the validity of an administrative rule or decision in proceedings which are not public law proceedings brought for that purpose, when it would be an abuse of process to bring private law proceedings in order to do so. In the present case, since Mr Shingara is so long out of time for challenging the March 1991 decision, it unquestionably would be.”
60.	In the twenty first century CPR Part 54 has replaced the former RSC Order 53. Despite that transmutation, CPR Part 54 retains the essential characteristics of its predecessor. These are a strict time limit for commencement of proceedings, a requirement for permission to proceed, absence of conventional pleadings and a short oral hearing with little or no oral evidence. 
61.	Against that background the exclusivity principle established in O’Reilly, together with its complex web of exceptions, has survived into the present century. 
62.	In Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, a student claimed that her university had, in breach of contract, given her a mark of zero because of suspected plagiarism. The Court of Appeal refused to strike out her claim on the basis of the exclusivity principle. 
63.	In his judgment Lord Woolf MR discussed the effect of the CPR on O’Reilly. At that time the rules were in a state of transition. CPR Parts 7 and 8 were in place. The old RSC Order 53 was being preserved in a schedule to the CPR, as a temporary measure until it could re-enacted in the CPR. Lord Woolf MR said:  
“34. The court’s approach to what is an abuse of process has to be considered today in the light of the changes brought about by the CPR. Those changes include a requirement that a party to proceedings should behave reasonably both before and after they have commenced proceedings. Parties are now under an obligation to help the court further the overriding objectives which include ensuring that cases are dealt with expeditiously and fairly: CPR, rr. 1.1(2)(d) and 1.3. They should not allow the choice of procedure to achieve procedural advantages. The CPR are, as r. 1.1(1) states, a new procedural code. Parliament recognised that the CPR would fundamentally change the approach to the manner in which litigation would be required to be conducted.
…
36. When considering whether proceedings can continue the nature of the claim can be relevant. If the court is required to perform a reviewing role or what is being claimed is a discretionary remedy, whether it be a prerogative remedy of an injunction or a declaration the position is different from when the claim is for damages or a sum of money for breach of contract or a tort irrespective of the procedure adopted. Delay in bringing proceedings for a discretionary remedy has always been a factor which a court could take into account in deciding whether it should grant that remedy. Delay can now be taken into account on an application for summary judgment under CPR, Part 24 if its effect means that the claim has no real prospect of success. 
37. Similarly if what is being claimed could affect the public generally the approach of the court will be stricter than if the proceedings only affect the immediate parties. It must not be forgotten that a court can extend time to bring proceedings under RSC Ord. 53. The intention of the CPR is to harmonise procedures as far as possible and to avoid barren procedural disputes which generate satellite litigation. 
38. Where a student has, as here, a claim in contract, the court will not strike out a claim which could more appropriately be made under Order 53 solely because of the procedure which has been adopted. It may however do so, if it comes to the conclusion that in all the circumstances, including the delay in initiating the proceedings, there has been an abuse of the process of the court under the CPR. The same approach will be adopted on an application under Part 24. 
39. The emphasis can therefore be said to have changed since O’Reilly v Mackman [1983] 2 AC 237. What is likely to be important when proceedings are not brought by a student against a new university under Order 53, will not be whether the right procedure has been adopted but whether the protection provided by Order 53 has been flouted in circumstances which are inconsistent with the proceedings being able to be conducted justly in accordance with the general principles contained in Part 1. Those principles are now central to determining what is due process.”
64.	In Trim v North Dorset District Council [2010] EWCA Civ 1446; [2011] 1 WLR 1901 the Court of Appeal struck out as abuse of process litigation about the service of a ‘breach of condition’ notice by a planning authority. Carnwath LJ (with whom Patten and Laws LJJ agreed) stated at [26]: 
“26. The exclusivity principle is in my view directly applicable in the present case. The service of a breach of condition notice is a purely public law act. There is strong public interest in its validity, if in issue, being established promptly, both because of its significance to the planning of the area, and because it turns what was merely unlawful into criminal conduct. It is an archetypal example of the public action which Lord Diplock would have had in mind. It does not come within any other categories identified in Wade & Forsyth, Administrative Law or de Smith’s Judicial Review as requiring a more flexible approach.”
65.	From this review of the authorities I derive two general propositions: 
i)	The exclusivity principle applies where the claimant is challenging a public law decision or action and (a) his claim affects the public generally or (b) justice requires for some other reason that the claimant should proceed by way of judicial review. 
ii)	The exclusivity principle should be kept in its proper box. It should not become a general barrier to citizens bringing private law claims, in which the breach of a public law duty is one ingredient. 
66.	Let me now turn to the present case. The claimant’s claim is based upon the allegation that the defendants delivered to him after-care services pursuant to section 117 of the 1983 Act, but failed to make payment for those services as was their duty. 
67.	The defendants raise some formidable defences to that claim, but they can have no legitimate objection to the claimant proceeding under Part 7 of the CPR. This is a private law claim, even though based upon section 117 of the 1983 Act. It has no wider public impact. Justice does not require for any other reason that the claimant should proceed by way of judicial review. If the exclusivity principle is allowed to block this claim, it will become an instrument of injustice. 
68.	In the result, therefore, I dismiss the first ground of appeal. I must now turn to the second ground of appeal. The issue there is whether the defendants’ non-compliance with section 117 of the 1983 Act gave rise to a private law claim. 
Part 6 – Did the defendants’ non-compliance with section 117 of the Mental Health Act 1983 give rise to a private law claim?
69.	The defendants contend that the answer to this question is no. In support of this contention they rely principally upon X (Minors) v Bedfordshire County Council [1995] 2 AC 633, O’Rourke v Camden London Borough Council [1998] AC 188 and Clunis v Camden and Islington Health Authority [1998] QB 978. 
70.	I shall take those cases in chronological order. X v Bedfordshire was a group of five conjoined appeals concerning alleged negligence and breaches by local authorities in the performance of their statutory duties. The Bedfordshire case came first and was typical. The complaint was that Bedfordshire County Council had negligently failed to take five children into care, thereby leaving them to suffer personal injury at the hands of their parents. The plaintiffs claimed damages for breach of statutory duty and negligence (see my submissions as counsel on behalf of the plaintiffs at 718B – 719D). The House of Lords rejected these arguments. 
71.	Lord Browne-Wilkinson (with whom Lord Jauncey, Lord Lane, Lord Ackner  and Lord Nolan agreed) stated the basic principles as follows at 731 C–E:
“The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.”
72.	Lord Browne-Wilkinson then examined the statutory provisions in the five cases before the House. He concluded in each case that Parliament did not intend to confer on members of the class protected a right of action for breach of statutory duty. 
73.	In my view, the present case is materially different from X v Bedfordshire. The claimant is not saying that the defendants failed to deliver after-care services under section 117 of the 1983 Act, or that the defendants delivered those services badly. The claimant’s complaint is that whilst delivering those services, the defendants failed to pay for them. The defendants left the claimant’s deputy to pick up the bill. 
74.	It may well turn out that the defendants have a good defence. But the principles established in X v Bedfordshire do not provide a complete answer to the claimant’s claim. 
75.	I come next to O’Rourke. The plaintiff presented himself to the defendant council as a homeless person. The council placed the plaintiff in temporary accommodation while they were assessing his application. The claimant was evicted from that property before the council had completed its investigations. The council, in breach of section 63 of the Housing Act 1985, failed to provide further temporary accommodation for him. The plaintiff bought an action for damages. 
76.	The county court judge struck the claim out. The Court of Appeal reinstated it. The House of Lords struck it out again. Lord Hoffmann gave the principal speech, with which Lord Goff, Lord Mustill, Lord Nicholls and Lord Steyn agreed. Applying X v Bedfordshire, Lord Hoffmann said that the question was whether section 63(1) of the Housing Act 1985 created a duty to the plaintiff which was actionable in tort. He concluded that it did not. 
77.	O’Rourke is an illuminating judgment. But for the reasons stated in paragraph 73 above, it does not undermine the claimant’s present claim. 
78.	The final case in the trilogy is Clunis. The plaintiff was discharged from hospital after a period of detention under section 3 of the 1983 Act. Two months later he killed a man by stabbing. The plaintiff pleaded guilty to manslaughter on the grounds of diminished responsibility. Blofeld J sentenced him by imposing a hospital order. 
79.	The plaintiff claimed damages against the health authority responsible for his care in the period before the stabbing. The Court of Appeal ordered his claim to be struck out on two grounds. First, the plaintiff could not mount a claim based on his own criminal conduct. Secondly, the plaintiff could not bring a claim for breach of statutory duty under section 117 of the 1983 Act. Beldam LJ, delivering the judgment of the court, said at 991 C–H:
“Following the analysis of the duties imposed by Parliament on local authorities in X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633, the first question is whether the statutory provisions in this case create duties which give rise to a private law claim for damages if they are not fulfilled or, more particularly, whether a person who has been detained in hospital and who is discharged can claim damages for non-performance of the “after-care” obligations in section 117(2) of the Act of 1983. 
Under section 117(2) the authorities named are required to co-operate with voluntary organisations in setting up a system which provides after-care services for patients who have been discharged from hospital after treatment for mental disorder. The services have to be made available to such persons until “the person concerned is no longer in need of such services”. Undoubtedly the section is designed to promote the social welfare of a particular class of persons and to ensure that the services required are made available to individual members of the class. However section 124 provides the Secretary of State with default powers if he is of the opinion “on complaint or otherwise” that the functions conferred or imposed under the Act have not been carried out. Thus the primary method of enforcement of the obligations under section 117 is by complaint to the Secretary of State. No doubt, too, a decision by the district health authority or the local social services authority under the section is liable to judicial review at the instance of a patient: see Reg v Ealing District Health Authority, Ex Parte Fox [1993] 1 W.L.R. 373. The character of the duties created seem to us closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633, 747 as requiring: 
“exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.”
In our view the wording of the section is not apposite to create a private law cause of action for failure to carry out the duties under the statute. 
Mr Irwin argued that, on discharge from the hospital, the patient nevertheless remained a person for whom the district health authority and the local social services authority are responsible in the sense that they a duty not only to ensure that the services are available but that the patient receives the benefit of them, and he went on to submit that duty of care is thereby imposed on the authority which is merely an extension of the care which he has been receiving as a patient in hospital. In effect, he submitted, the relationship of doctor and patient which existed between the district health authority and the plaintiff while he was in hospital continued after the discharge, so that a common law duty of care was owed by the defendant to continue the plaintiff’s treatment. Is it in the circumstances just and reasonable to superimpose such a common law duty of care on an authority in relation to the performance of its statutory duties to provide after-care? We do not think so. We find it difficult to suppose that Parliament intended to create such an extensive and wide-ranging liability for breaches of responsibility under section 117, which would of its nature apply alike to those engaged as professionals as well as those in voluntary servicers in many disciplines.”
80.	I respectfully agree with that analysis. A patient who receives inadequate after-care services cannot claim damages for breach of statutory duty. The claimant’s case, however, is the opposite of that scenario. The claimant’s claim is that he received adequate after-care services. Therefore the defendants must pay for them. 
81.	Mr Lock in developing his submissions on ground two said that the residential placement and after-care services which the claimant received between 2004 and 2013 were all part of private arrangements made by the claimant’s deputy. The defendants did not agree to those arrangements. They certainly did not agree to pay for them. The services which the deputy arranged were extravagant, in the sense of being more extensive than the claimant needed. The claimant’s deputy was fully entitled to use the claimant’s damages in that way. The fund was there to be spent for the claimant’s benefit. Nevertheless the defendants had no liability to pay for the residential placement or the various services between 2004 and 2013. 
82.	What Mr Lock says may well turn out to be right. But, as Ms Richards points out, none of these matters can be resolved on an application to strike out. 
83.	Mr Lock also argues that the defendants have not been enriched. They have spent all their available funds on delivering services to other patients. Mr Lock delved into the authorities on restitution in order to make good his submissions. 
84.	I do not intend to follow Mr Lock on this stage of his odyssey. The more Mr Lock developed his submissions on ground two, the more obvious it became that these are matters for decision at trial after evidence has been called and the judge has made findings of fact. The second ground of appeal is not a proper basis for striking out the claimant’s claim. 
Part 7 – Executive Summary and Conclusion
85.	The claimant has a long history of mental illness, following frontal lobe injury which he sustained in a road traffic accident 33 years ago. He received damages following the accident, which his deputy administers. The claimant was compulsorily detained in hospital under section 3 of the Mental Health Act 1983 in 2004. Following his discharge from hospital he has received various after-care services. The claimant’s deputy funded the services between 2004 and 2013. The defendants have funded those services since 2013. 
86.	The claimant by his deputy now seeks to recover the costs of the after-care services between 2004 and 2013 (including 18 months residential placement) on the grounds that the defendants are liable for the costs under section 117 of the 1983 Act. 
87.	The defendants applied to strike out the claim as an abuse of process. The judge rejected that application. The defendants now appeal on two grounds: first, the claimant should have brought his claim by judicial review; secondly, the defendants’ alleged non-compliance with section 117 of the 1983 Act does not entitle the claimant to recover damages for unjust enrichment or restitution. 
88.	The first ground of appeal raises a clean point of law, capable of resolution on the basis of the pleadings. I decide that point against the defendants. 
89.	The second ground of appeal (despite its formulation as a point of law) raises questions of fact which are hotly contested. This is not, therefore, suitable for resolution on an application to strike out. 
90.	In the result, therefore, if my Lords agree, this appeal will be dismissed. 
Lord Justice Lewison :
91.	I agree.
Lord Justice Hamblen :
92.	I also agree.