Should Local Authorities be making strike out applications based on CN v Poole?

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11 November, 2020

Kella Bowers
Partner and Head Social Care

Recently the Court heard an Application brought by the Local Authority, Derbyshire County Council, to strike out a claim in negligence brought by X, a minor.

Under CPR 3.4 the Court has the power to strike out a statement of case if it appears that there are no reasonable grounds for bringing the claim. Essentially, the Court must decide if there is a triable issue. If there is, the claim will proceed. If there isn't, and the Court considers that the claim is totally without merit, the Court will record that fact.

In X & Y v Derbyshire County Council the court was faced with such Application. The Local Authority's argument being that there was no triable issue to be argued in X's negligence claim.

X's claim

X allegedly suffered years of abusive behaviour by her mother which culminated in her suffering with mental health difficulties including self-harming behaviour. X's father allegedly disclosed the abusive behaviour (fabricating / inducing illness, administering harmful drugs to X) to Social Services who allegedly accepted these complaints and did not take action until several years later when X was assaulted by her mother.

The pleaded case went as far to say that the actions of the Local Authority were "more akin to an adviser of the mother".

Alongside the negligence claim X also brought claims under Articles 3 and 8 of ECHR.

Strike Out Application

The Local Authority argued that, in relation to the negligence claim, there was no triable issue and the claim should be struck out at this early juncture i.e. there was no need for a trial because the claim was bound to fail. They relied upon CN v Poole within their Application.

Under CN v Poole a Local Authority can be held liable for causing harm (making things worse - previously referred to as positive act) but not for failing to confer a benefit (not making things better - previously referred to as an omission), unless they have assumed a responsibility upon which a reliance has been placed.

The Local Authority stated that the actions of Social Services amounted to a failure to confer a benefit and there were no grounds to establish that they assumed a responsibility. Therefore, under CN v Poole, no liability would attach. As such, their Application requested that the Court strike out the claim at this early juncture.

The Court's decision

The Court rejected the Local Authority's position that the claim was clear cut at this point in time. They were satisfied that there was a triable issue to be heard. There was a chance that the Claimant could make out her case that the Local Authority either created the danger or assumed responsibility.

Unsurprisingly, the Court probably wished to hear from the Social Workers who dealt with the various alleged referrals, who made home visits, and made the decisions as to what action to take. That simply cannot be done during a strike out Application hearing as it will require cross examination and a thorough consideration of the issues.

Forbes Comment

It is important to note that we are currently awaiting the Judgment in this matter and the case continues. Based on the information we have available, there are clear arguments to be had on both sides; arguments which do require thorough consideration by a trial Judge. If that is ever the case, a Strike Out Application is unlikely to be successful as the threshold is extremely high; the Court must be satisfied that the claim (or defence) will fail if the matter proceeds to trial. If there is an inkling of doubt, the Court will not strike out a claim.

It will be interesting to see if this claim proceeds to trial. It has been long-awaited, by both Claimants and Defendants alike, for a case to be heard at trial which will unpick and delve deeper into the decision of CN v Poole.

For more information contact Kella Bowers in our Insurance department via email or phone on 01254 222437. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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