Case No: HQ03X03049
BAILII Citation Number: [2008] EWHC B8 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand, London WC2A 2LL
Date: Friday, 9th May 2008

Before:

MASTER LESLIE

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B E T W E E N:

	NOEL DOUGLAS<BR>(by his Litigation Friend, Joyce Douglas)	Claimant	
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	(1) BELDRAY LIMITED<BR>(2) STOKE-ON-TRENT PRIMARY CARE TRUST	Defendants	

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JUDGMENT

MASTER LESLIE:

1.	This is an application brought by the defendants in accordance with directions which I gave earlier this year for permission to join the Stoke-on-Trent Primary Care Trust to these proceedings in circumstances which I shall summarise.

2.	Mr Douglas was grievously injured when employed by the defendants before they went into administration.  He is a protected party.  His wife acts as his litigation friend.  He is chronically seriously ill and, alas, occasionally has bouts of acute illness which require his admission to hospital from time to time.  He has fetched up in a care home which is at the moment paid for, at the prodigious rate of £11,000 per month, by the defendants by voluntary interim payments.

3.	The history of this man’s treatment is long, and potentially detailed, but again I can simply say that he has spent time in at least four different care homes or nursing homes or near hospitals over a period of years.  As a result, he was in at least four different local authority areas and three primary care trust areas.  

4.	The defendants’ insurers, not unnaturally, taking the lead from the case of Sowden v Lodge and later authorities, sought to share the burden of paying for the care of Mr Douglas with one or more of those statutory authorities who might have been responsible.  They had enormous difficulty and (not to put too fine a point on it) were led a not-so-merry Kafkaesque dance by them, each one of them declining to accept responsibility and seeking to shift it, from time to time, on to others.

5.	In accordance with the requirements of Sowden v Lodge and other authorities, the claimant (with some persuasion, I like to think) from me, cooperated with the defendants in approaching these local authorities and primary care trusts in the hope that assessments would be forthcoming.  

6.	An assessment eventually was made by the Wolverhampton Social Services Department who, very unhelpfully, said that they found that Mr Douglas’s needs were far greater than Wolverhampton Social Services could possibly provide and they declined to do anything for him.  Implicit in that I think - and I have not read recently (if I have read at all) the assessment report - was the clear fact that Mr Douglas’s medical condition is such that he needs very much more than simply the usual social care of medically unqualified carers.  He needs I will not say 24-hour nursing care but something approaching that, along with the full panoply of other support workers.

7.	The primary care trusts were also for many months, if not years, declining to accept responsibility for Mr Douglas at all, saying that they were not (what I think is called) responsible commissioners or commissioning responsible bodies, or something of that nature.  All of them say, “He is not our responsibility.”  Eventually, as a result of industry and research into the labyrinthine and byzantine regulations no doubt, the Stoke-on-Trent Primary Care Trust was lighted upon as being the principal candidate for being the responsible commissioner.  Lo and behold, quite relatively recently they have accepted that that is the case.  However, they have declined to assess his medical or clinical needs until relatively recently, and then only for some time appeared to be willing to do so.  Most recently, as a result of a letter written by the claimant’s solicitors, they have declined to do so and assess him at all.

8.	That then is the factual background to the case very much in outline.  The application to join the primary care trust as a defendant or as a third party has, as its origins, first of all the case of Sowden v Lodge and, secondly, dicta in the case of Croften, in which it is suggested that in difficult cases the defendant, who bears the burden of showing that there ought to be sharing of costs, should join the local authority to ensure that its duty under the National Assistance Act 1948 is discharged.

9.	In this case, the defendants, as I have said, seek to join the primary care trust.  I must confess that I myself was under the impression (which has proved to be quite erroneous) that a primary care trust or other health authority subject to the National Health Service legislation was under a similar duty to the local authority to provide care in the clinical field, just as the local authority is under an obligation to provide it in the social field.  That, as a result of the learning of Mr Lock I now realise, was entirely erroneous - the two schemes are entirely different.  It is not for me to say whether it is right or wrong that they should be different, nor is it for me to ascribe or to try and understand the reasons why they should be different.  But they are.  There is an obligation on the local authority, subject to means, to provide social care and housing, subject to the homeless persons’ legislation and so on, for people in need.  There is no such obligation on the National Health Service bodies.

10.	Its origin is in the duty in the Secretary of State to provide care.  Under section 3 of the National Health Service Act 2006, the Secretary of State must provide, to such extent as he considers necessary to meet all reasonable requirements for the purposes of the case, such other services or facilities for the care of persons suffering from illness and the aftercare of persons who have suffered from illness, as he considers are appropriate as part of the Health Service.  One immediately sees that his responsibilities are discretionary, they are not obligatory.  In fact he (or she - I am not quite sure at the moment) delegates those to the primary care trust in the Stoke-on-Trent area, and the position is that he has what is known as a “target” to provide for those needs.  

11.	The decision as to whether a person requires assistance or provision of services is dealt with by the inelegantly named The NHS Continuing Health Care (Responsibilities) Directions 2007, which is made both under the National Health Service Act 2006 and the Local Authorities Social Services Act 1970.  It provides that “A primary care trust must take reasonable steps to ensure that an assessment of NHS continuing health care is carried out in all cases where it appears to the trust that there may be a need for such care.”

12.	That then is an outline of the statutory background.  It is, I think, common ground that there is no contractual or any other nexus between the defendants and the primary care trust that gives rise to an obligation on the primary care trust to provide anything for the defendants.  There appears to be, therefore, no direct cause of action, as lawyers would recognise it to be, as between the two.  Neither, in my judgment, given the relief that the defendants seek in their draft particulars of case, do they seek a contribution by or from the primary care trust, such contribution being defined in the 1978 Civil Liability Contribution Act 1978 section 1(1): “Any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage, whether jointly with him or otherwise.”  Section 6(1) reads: “A person is liable in respect of any damage, for the purposes of this Act, if the person who suffered it is entitled to recover compensation from him in respect of that damage.”

13.	There is no suggestion in this case that Mr Douglas is entitled to compensation from the primary care trust, and so, it seems to me, there is no right of contribution as between the defendants and the primary care trust.  It may be otherwise in respect of a claim where what is being dealt with is social care, where the claimant may be entitled to money, or money’s worth, from the local authority because of the obligations that arise under the Act.  I am not called upon to decide it, but it may be that that is a correct analysis of the position that arose in Sowden v Lodge and in Crofton.  But here there is, in my judgment, no such right to a contribution, and indeed it is not put in that way.  What is sought in the draft order is a series of declarations that the primary care trust is obliged to assess and provide health care, and so on, for the claimant.

14.	What is also clear is that this is bordering on the realms of public law.  Mr Melville gallantly sought to persuade me that the CPR is so flexible as to allow me to permit this claim to proceed, as between the defendants and the primary care trust, as if it were a claim for judicial review.  First of all, it is very clear that in the CPR , flexible though the Rules may be,  any claim for judicial review must be brought in accordance with the terms of Part 54.  It seems to me that it would be quite wrong for me to assume jurisdiction in that connection.

15.	It is also right, and I take into account the fact, that there is no obligation arising under statute or in public law as between the defendant and the primary care trust such that would give locus or standing to the defendants to apply for judicial review.  It seems to me, although not determinative of the matter, that that is something that I am entitled to, and indeed bound to, take into account.  So I decide that I do not have the power to deal with this matter on the grounds suggested by Mr Melville in that connection.

16.	What, it seems to me, is finally determinative of this application is as follows: is there any prospect, real or other than a fanciful one, of the defendants obtaining the relief that they seek?  If  ‘Yes’, then the matter should proceed.  If ‘No’, then it should be stopped at the threshold, in limine, before any further costs are incurred.

17.	Secondly, and in accordance with that, I am clear that not only is this completely different from the facts of Sowden v Lodge and Crofton and the other cases, where local authorities were sought to be brought in for the reasons I have endeavoured to give, but this is also fatally flawed and/or there is no foundation for bringing this claim because Mr Douglas, and those who advise him, contrary to the impression that Mr Melville seems to have had, have long been saying that they look to the insurers of the defendants to pay for the care; but that they will cooperate with the defendants’ insurers in seeking to obtain contributions from other sources.  When Mr Douglas’s solicitors wrote to the proposed defendant primary care trust very recently saying that “We only look to the defendants’ insurers for care”, that was not, in my judgment, a new fact or a new stance: it was what they had always said, subject to their obligation, in accordance with Sowden v Lodge and my expectations, to cooperate with the defendants in approaching statutory bodies.  

18.	That being so, first of all, the primary care trust were (and are) entitled to say, it seems to me, that this patient, Mr Douglas, is not in need of such care as required by the 2007 Directions, from which I have quoted above; that there was (and will be) no need for such care because it is being provided by - and Mr Douglas expects it to be provided by and wants it to be provided by and it will be provided by - a solvent insurer.  

19.	Moreover and more fatally yet, it seems to me, is the provision of section 2(4) of the Law Reform (Personal Injuries) Act 1948.  Mr Douglas, as he is perfectly entitled to do, has elected to have his care, clinical and otherwise, provided for by the insurers.  In so far as it is clinical, the fact that he has so elected means that the defendants and their insurers are, as a result of section 2(4) of the Law Reform (Personal Injuries) Act 1948, bound to meet those reasonable costs of his reasonable requirements in their entirety without any contribution from any National Health body.  It is different as far as social care, by or from medically unqualified staff is concerned, because of Sowden v Lodge and the National Assistance Act and so on and so forth.  Eagle v Chambers makes it perfectly plain that that is the case, for what it is worth.

20.	There may be some grey areas between clinical and social care needs.  They have not been identified fully, or at all.  The Wolverhampton Social Services Department and/or Borough Council (whatever their correct name is) have come to the conclusion that they have largely because (I read between the lines) the medical condition of this man is so serious.  But be that as it may, it does not and cannot assist the defendants in this application to say, “We cannot get the social care for the claimant from the local authority or a contribution towards it because they have refused it, can we please have some contribution to the social care from the primary care trust?”  That does not work either for the reasons I have endeavoured to explain.

21.	It follows that this application fails and must be dismissed.

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