Jersey Unreported Judgments

[2011]JRC186

Royal Court

(Samedi)

28 September 2011

Before     :

J. A. Clyde-Smith., sitting alone.

 

Advocate T. V. R. Hanson for the Plaintiffs.

Advocate C. R. G. Davies for the Defendant.

judgment

the commissioner:

1.        I have two issues to determine on an application for directions, namely whether I should order the hearing of a preliminary issue and whether I should order disclosure of a certain internal management report. 

2.        This is a personal injuries claim brought by three children who are now aged 15, 14 and 12, against the Minister for alleged negligence and/or breach of duty over a period of some 10 years.  The children are now in care. 

3.        The Minister, in her answer, while admitting that the children suffered harm, including sexual abuse, physical abuse, emotional abuse and the results of neglect, denies negligence and/or breach of duty and furthermore, denies the existence of a private law duty of care to the children. 

4.        The Minister applies for that issue, namely whether she owes the children a private law duty of care, to be determined as a preliminary issue pursuant to Rule 7/8 of the Royal Court Rules 2004, as amended, which is in the following terms:-

"7/8    Determination of question of law or construction

(1) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any proceedings at any stage if it appears to the Court that -

(a) such question is suitable for determination without a full trial of the action; and

(b) such determination will finally determine (subject only to any possible appeal) the entire proceedings or any claim or issue therein."

5.        If the Minister were to succeed in her argument that no private law duty of care exists, that would finally determine the entire proceedings in her favour, subject only to a possible appeal.  Ms Davies submitted that this was a pure issue of law which could be considered in isolation and in advance of the fact-finding exercise. 

6.        The current state of Jersey law would appear to support the Minister's argument.  In Dobson-v-Public Services Committee [2003] JLR 446, the Court struck out a private claim brought against the Public Services Committee for failure to repair the highway, adopting the principles enunciated in the House of Lords' decision of X and Others-v-Bedfordshire County Council (1995) 3 All ER 353, where Lord Browne-Wilkinson observed at page 731:-

"Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general."

However, both the Dobson and Bedfordshire cases pre-date the introduction into law of the European Convention on Human Rights. 

7.        In D-v-East Berkshire Community Health NHS Trust (2003) 4 All ER 796, the English Court of Appeal examined in detail the English decisions that followed the Bedfordshire case, in which its effect was significantly restricted, the impact of the Human Rights Act 1998 and a number of  recent decisions of the Strasbourg Court (including Z-v-UK (2001) 2 FCR 246 and TP-v-UK (2001) 2 FCR 289) concluding at paragraphs 83 and 84:-

"[83] In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the 1998 Act.  Where child abuse is suspected the interests of the child are paramount: see s 1 of the Children Act 1989.  Given the obligation of the local authority to respect a child's convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties.  In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of arts 3 or 8.  The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the 1998 Act.  This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified.  On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force. 

[84] It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings.  It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts."

8.        More recently, in Syvret-v-Chief Minister and Others [2011] JRC 116, Sumption, Commissioner, recognised that the principles laid down in the Bedfordshire case had been modified in the case of child protection legislation in order to give effect to the European Convention on Human Rights and observed at paragraph 54:-

"In the light of the developing jurisprudence of the European Convention on Human Rights, it may well be that in order to give effect to the right to private and family life under Article 8, the Children (Jersey) Law 2002 a private right will be treated as arising in favour of children against those charged by the Law with their protection.  This has been held in relation to the corresponding legislation in England: D-v-East Berkshire Community NHS Trust [2004] QB 558, [2005] 2 AC 373." 

9.        Ms Davies made the point that the Jersey Courts were not bound to follow the decision in the Berkshire case and its interpretation of the effect of the relevant decisions of the Strasbourg Courts, but acknowledged that in trying to persuade the Jersey Court to plough its own furrow she would face substantial obstacles. 

10.      The possibility of taking a discrete issue which might determine the whole case, thus avoiding the costs which the parties would incur in taking the matter further, is attractive at first blush.  An appeal against the decision to the Court of Appeal and potentially to the Privy Council, however, can without exaggeration add years to the process.  A number of English and Jersey cases have warned against the practice.  In the case of London Borough of Southwark-v-O'Sullivan and another (2006) EWCA Civ 124, a case in which the construction of a statute was taken as a preliminary issue, Lewison J said this at paragraph 14:-

"[14] As Lord Scarman observed in Tilling-v-Whiteman [1980] 1 All ER 737, [1979] 2 WLR 401, preliminary points of law are too often treacherous shortcuts, their price can be, as here, delay, anxiety and expense.  As so often, the decision to try preliminary issues on assumed facts has lead to an over-complication of the case and puts the court into a position of having to decide questions, without a full picture of the factual background on which the case depends.  In this case, as in many others, the decision to have a trial of preliminary issues has turned out to be a false economy.  I have therefore reached the conclusion that this court should not embark upon a consideration of the question of construction in advance of the fact-finding exercise."

11.      In Public Services Committee-v-Maynard [1996] JLR 343 our Court of Appeal (Southwell JA presiding) gave a similar warning in the context of a personal injuries case at page 359:-

"It appears from the order of the Judicial Greffier of September 30th, 1993 that the issue he ordered to be heard as a preliminary issue, 'whether the plaintiff's right of action is prescribed', was an issue of both fact and law. In the event, it was argued before the Lieutenant Bailiff and before this court simply as involving points of law.  To choose points of law such as these for initial decision seems to us to be within the current practice of the Royal Court of Jersey.  However, in our judgment, the Royal Court should reconsider its current practice.  To single out bare points of law in this way (which might, when the facts are found, prove to be hypothetical) is likely to increase costs and to extend the time before the plaintiff knows whether he or she is to receive damages for his or her injury and receives the damages awarded.  Justice delayed is usually justice denied, particularly in personal injury cases, in which the normal approach should be to fix as early a date as possible for the trial of all issues together."

12.      In addition to the delays and costs that can be incurred through the appeal process, there is a further danger, in my view, in taking a preliminary point in a factual vacuum, particularly where, as here, Convention rights must be taken into account. 

13.      Ms Davies submitted that the main proceedings could well be delayed in any event, because of the need to have the children's current health assessed by experts and accordingly, any delay caused by taking this point as a preliminary issue would not be significant.  She refuted Mr Hanson's assertion that insurers, by whom she was instructed, may seek to use procedural tactics to delay the case and thus to place pressure upon the plaintiffs who are legally aided. 

14.      Ms Davies further submitted that in deciding whether or not to order a preliminary issue, I should not take into account what would appear to be the relative merits of the arguments that would be presented to the Court.  I disagree with that.  Under Rule 7/8, the Court can order the trial of an issue if it appears to the Court that it will finally determine the entire proceedings and it will only do so in this case if the Minister succeeds in her argument.  Ms Davies acknowledged, as previously mentioned, that she faced substantial obstacles in persuading the Court not to follow the English Court of Appeal decision in the Berkshire case and its interpretation of the decisions of the Strasbourg courts which underpin it. 

15.      Taking into account the warnings given in particular by our Court of Appeal in Maynard that in personal injuries cases all issues should be tried together, the risk of substantial delays and costs being incurred through the appeal process, my concern about the Court dealing with this issue in advance of the fact-finding exercise and the relative merits of the arguments that would be presented to the Court, I decline to order the trial of this preliminary issue. 

16.      The case must now proceed to be set down and general discovery take place.  I invite counsel to agree the directions that should now be given to take this case forward. 

Disclosure

17.      The background to this request for disclosure is as follows.  A Serious Case Review was commissioned by the Jersey Child Protection Committee, a non statutory body established by the Minister, to examine the involvement of agencies and professionals with one of the children and to consider what lessons could be learned.  Internal management reports were submitted by a number of agencies to the Serious Case Review Panel, one of them being an internal management report from the Children's Service "(the Children's Service's IMR").  It comprises the opinion of the author following a number of interviews undertaken and an examination of the contemporaneous documents provided. 

18.      The report of the Panel dated February 2010 was sent to Mr Hanson, acting for the children, and published on its website.  It makes extensive references to the Children's Service's IMR but the IMR itself is not appended. 

19.      Mr Hanson seeks disclosure of the Children's Service's IMR in advance of general discovery.  He anticipates that it will identify failings on the part of Children's Service and greatly assist the children's case.  The application is resisted by the Minister.  The skeleton argument filed by Ms Davies proceeded on the basis that public interest immunity was claimed in respect of this document, the implication being that it was a document that was otherwise disclosable applying the test set out in Victor Hanby Associates Limited and Hanby-v-Oliver [1990] JLR 337 at page 345:-

"A document relates to the matters in question in the action if it contains information which may - not which must - either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train of enquiry which may have either of those two consequences."

20.      However, at the hearing Ms Davies questioned the relevance of the document to the issues in the case.  She had filed with me confidentially a copy of the Children's Service's IMR and produced a letter from Mr Mike Taylor, the independent chair of the Jersey Child Protection Committee, opposing disclosure. 

21.      There are no rules in Jersey governing the procedure for claiming PII in civil cases and no authority was produced to me.  I was referred to "Disclosure" by Paul Matthews and Hodge Malek, 3^rd edition 2007, which explains that in England an official view will be put forward usually by certificate or affidavit or witness statement by the Minister or other appropriate official, such as the head of the organisation concerned, as to why the document concerned will not be disclosed or produced.  In accordance with a three stage test the official must consider whether disclosure would cause real damage or substantial harm. If he is satisfied that the damage test is met, he should consider (so far as he can judge it) the strength of the public interest in disclosing the document and carry out the balancing exercise. 

22.      The three stage test is derived from a Government Report dated 18^th December, 1996, and set out at paragraph 11.85 as follows:-

"First: A decision must be taken on whether there is a duty to disclose the document at all.  Broadly speaking, the question in civil and criminal cases will be whether the document is relevant or potentially relevant to an issue in the case.  If there is no duty to disclose the document, questions of PII do not arise. 

Sir Richard Scott recommended that if a disclosure point involving documents which are the subject of a PII claim is referred to the judge, the judge should be invited to decide first whether the documents are disclosable. In the Government's view, this is a correct and useful approach. 

Second: If there is a duty to disclose, a decision must be taken on whether the document attracts PII.  Existing practice has been to determine this question by asking whether the document attracts PII because of its 'contents' or because it falls into a 'class' of documents which attracts PII.  The Government regards this distinction as no longer helpful.  It proposes to abandon it and adopt a new approach which applies the fundamental test of whether the maker of the certificate believes that disclosure would cause real damage. 

Third: this step applies to some claims, including those made by Ministers.  If the document attracts PII, the decision maker will consider (so far as he can judge it) the strength of the public interest in disclosing the document.  This will require an assessment of the issues in the case.  The decision maker performs what is described in this report as the Wiley balancing exercise, usually after taking advice from counsel in the case or Treasury counsel.  If the balance appears to him to favour disclosure, he is entitled to disclose the document.  If the balance appears to go the other way, or if the decision maker is uncertain, he will put a certificate to the court explaining clearly his reasons for asserting PII; and the court will then be invited to determine whether disclosure should be made."

23.      Where the document is of questionable relevance or it is arguable that production is in any event not necessary, the court will usually consider relevance first and only once it has decided that prima facie the document should be disclosed, will the Judge then go on to consider public interest immunity carrying out a three stage process as follows:-

"(a) satisfying himself from the certificate/affidavit/witness that:-

(i) the class of documents concerned is capable of attracting the immunity;

(ii) there is no reason to believe that the actual documents do not fall within the class aimed; and

(iii) both the documents and the claim have been properly considered by an appropriate person;

(b) determining whether there is a public interest in production of the documents, by reason of both:

(i) relevance to matters in question, and

(ii) necessity for disposing fairly of the case;

(c) balancing the public interest in withholding the documents against the public interest in producing them."

24.      Once Public Interest Immunity has been properly raised, the burden is on the applicant for production to show that the documents should be produced.  (Air Canada-v-Secretary of State for Trade No 2 (1983) 1 All ER 161 at 165-166). 

25.      I have not heard argument on the detail of the procedure in England and in particular on the English government's views on "class" documents but in my judgement, the substance of this procedure should be followed in Jersey in order to assert proper judicial control over the process and to secure a fair trial within Article 6 of the European Convention on Human Rights.  The Minister or an appropriate official should go through the three stage test set out above and put forward an official view by way of affidavit.  If the decision maker concludes that the balancing exercise comes out against disclosure, that view is not conclusive; it will be for the Court to decide but at the moment in the absence of that official view, the Court is not in a position to proceed and the parties acknowledged that was the case.  The matter must therefore be adjourned. 

26.      In the meantime, general discovery will now take place pursuant to Rule 6/17 of the Royal Court Rules 2004 and Mr Hanson indicated that if fulsome disclosure, as he put it, of the contemporaneous documents in this case were made, (and there is no suggestion that the Minister will not comply with her obligations in this respect) then the plaintiff's application to see this particular document may go away.  I did not hear full argument upon whether this matter should be adjourned pending the general discovery process or whether it should proceed independently with a direction for the filing of an official view within a stated period.  I invite counsel to try and agree this failing which I will make a decision when this judgment is handed down.  

Authorities

Royal Court Rules 2004.

Dobson-v-Public Services Committee [2003] JLR 446.

X and Others-v-Bedfordshire County Council (1995) 3 All ER 353.

D-v-East Berkshire Community Health NHS Trust (2003) 4 All ER 796.

Human Rights Act 1998.

Z-v-UK (2001) 2 FCR 246.

TP-v-UK (2001) 2 FCR 289.

Syvret-v-Chief Minister and Others [2011] JRC 116.

London Borough of Southwark-v-O'Sullivan and another (2006) EWCA Civ 124.

Public Services Committee-v-Maynard (1996) JLR 343.

Victor Hanby Associates Limited and Hanby-v-Oliver [1990] JLR 337.

"Disclosure" by Paul Matthews and Hodge Malek, 3rd edition 2007.

Air Canada-v-Secretary of State for Trade No 2 (1983) 1 All ER 161.