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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Roberts v The Attorney General & Anor [2016] EWHC 3219 (QB) (20 December 2016) URL: http://www.bailii.org/ew/cases/EWHC/QB/2016/3219.html Cite as: [2016] EWHC 3219 (QB) |
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QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
2 Park Street Cardiff CF10 1ET |
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B e f o r e :
____________________
HOWARD GRAY ROBERTS |
Claimant |
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- and - |
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THE ATTORNEY GENERAL KATE FLANNERY |
1st Defendant 2nd Defendant |
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Colin Thomann (instructed by Treasury Solicitor) for the 1st Defendant
Gerard Clarke (instructed by: LHS Solicitors LLP) for the 2nd Defendant
Hearing dates: 25 November 2016
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Crown Copyright ©
The Honourable Mr Justice Lewis:
"The essence of the Particulars of Claim is that (i) HMI Flannery owed a duty of care to the Claimant; (ii) she acted in breach of that duty of care in making a number of negligent misstatements about the Claimant to the selection panel; (iii) as a result the Claimant suffered loss of income and entitlements, and/or a loss of chance of selection, and/or the loss of his lifetime ambition to become a Chief Constable in Wales."
THE FRAMEWORK FOR APPOINTMENTS
"(1) Her Majesty may appoint such number of inspectors (to be known as "Her Majesty's Inspectors of Constabulary") as the Secretary of State may with the consent of the Treasury determine, and of the persons so appointed one may be appointed as chief inspector of constabulary.
"(2) The inspectors of constabulary shall inspect, and report on the efficiency and effectiveness of, every police force maintained for a police area.
"(3) The inspectors of constabulary shall carry out such other duties for the purpose of furthering police efficiency and effectiveness as the Secretary of State may from time to time direct."
"Professional Police Advisors
8. The chief constable will act as advisor to the selection panel for assistant chief constable and deputy chief constable. The Regional HMI will be invited to be present to advise at interviews for chief constable appointments and may also be present to advise at interviews for assistant chief constable and deputy chief constable appointments. Neither the chief constable nor the Regional HMI will act as a member of the panel. It is essential that in all cases the selection panel have the Clerk to the Authority present at all stages of the selection process to advise on legal and technical points, including personnel advice. It is recommended that a personnel expert and a diversity advisor should be available during proceedings. The Treasurer to the Authority may also attend to advise on technical points."
"6. In appointing chief officers it is important that selection panels should have professional advice. In the case of assistant chief constable and deputy chief constable appointments, the panel is required to consult the chief constable before an appointment is recommended and it is strongly recommended that the chief constable should be present at the interviews of all candidates. The chief constable could then advise the panel of the professional validity of candidates' responses. The selection panel should also invite professional input from the Regional HMI. But the final decision on an appointment is for the selection panel alone.
7. In the case of chief constable appointments, the Regional HMI should be present at the interview stage to act as a professional advisor on the operational correctness and the professional validity of candidates' responses. He/she should not be invited to comment on the overall performance of a candidate or to express any opinion as to suitability. For appointment of a new chief constable, the outgoing chief constable should not be present under any circumstances at short-listing or assessments."
THE PARTICULARS OF CLAIM
THE PROCEEDINGS IN THE COURT BELOW
"At the heart of the Second Defendant's application is the submission that no duty of care was owed because HMI Flannery was carrying out duties within a statutory framework for the protection of an aspect of the public interest, or a group other than the Claimant, and reliance is placed on the principles expressed in Trent Strategic Health Authority v Jain [2009] UKHL 4 and the authorities on which the HL in Jain drew."
"(1) If—(a) the Secretary of State applies to a justice of the peace for an order—(i) cancelling the registration of a person in respect of a nursing home or mental nursing home … and (b) it appears to the justice of the peace that there will be a serious risk to the life, health or well being of the patients in the home unless the order is made, he may make the order, and the cancellation … shall have effect from the date on which the order is made.
"(2) An application under subsection (1) may be made ex parte, and shall be supported by a written statement of the Secretary of State's reasons for making the application.
"(3) An order under subsection (1) above shall be in writing.
"(4) Where such an order is made, the Secretary of State shall serve on any person registered in respect of the home, as soon as practicable after the making of the order—(a) notice of the making of the order and of its terms; and (b) a copy of the statement of the Secretary of State's reasons which supported his application for the order."
" My Lords, I am of the opinion, in agreement with the majority in the Court of Appeal, and substantially for the reasons they have given, that an authority making an application to a magistrate under section 30 for the cancellation of the registration of a nursing home, or, for that matter, under section 11 for the cancellation of the registration of a residential care home, does not owe a common law duty of care to the proprietors of the home. In making the application the authority is exercising a statutory power. The purpose of the power is the protection of the residents in the home in question. It might be fair and reasonable to conclude that the authority did owe a common law duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority's statutory powers had come to the authority's attention but nothing had been done. But to conclude that an authority exercising, or deciding whether to exercise, its statutory powers owed a duty of care also to the proprietors of the home seems to me much more difficult.
THE ASSUMPTION UNDERLYING THE PROCEEDINGS
THE APPEAL
CONCLUSION