UK: Public Authority Liability Update - Summer 2011 - A Tale Of Two Strike Outs

Last Updated: 3 August 2011
Article by Rebecca Wilson

Ahmad v (1) London Borough of Brent, (2) National Probation Service, (3) Ministry of Justice, (4) Parole Board for England and Wales (2011), High Court

Following the well known decision in JD v East Berkshire Community Health NHS Trust (2005), the High Court has rejected an attempt by a claimant to impose a duty of care on a social services department in circumstances where there was a conflict of interest between the claimant and his daughter.


The factual background was both complex and disturbing. The claimant had been convicted of murdering his 19-year-old daughter in 1991 in an "honour killing". He was sentenced to life imprisonment but was a model prisoner and was released in 2001 on licence. His licence contained certain conditions and in particular, that he should have no direct contact with his surviving 13-year-old daughter without the prior written authority of social services.

In due course supervised contact with the surviving daughter was allowed. However, in 2006 a social worker from the London Borough of Brent prepared a risk assessment detailing concerns she had regarding the claimant, including that he had been having contact over and above that which had been permitted in accordance with the licence. Following this, the probation service prepared a report to the prison service who revoked the claimant's licence. He was sent back to prison.

The claimant appealed to the Parole Board immediately. The Parole Board ultimately decided that the claimant's recall had not been justified and in particular, that he had not been having contact in excess of what was permitted by his licence. By this time the claimant had spent a year in prison.

The claim

Once released the claimant brought a claim for damages arising from his loss of liberty against all of the agencies involved.

The claim was brought in negligence, misfeasance in public office and for a declaration of interference with the claimant's right to private and family life, engaging Article 8 of the European Convention on Human Rights. As against the local authority it was alleged that the risk assessment prepared by the social worker was incorrectly prepared and led to the claimant's wrongful recall to prison. It was alleged that the social worker owed a duty of care to provide accurate information to the other agencies, that the social worker was reckless as to the information that went into the risk assessment and that this ultimately caused him to lose his liberty.

Strike out

All three defendants applied to strike out the claim, in a hearing before Mr Justice Supperstone in the High Court which lasted an exceptional seven days.

In JD v Berkshire, the Court of Appeal set out the principle that when investigations into child abuse are being undertaken by a local authority, whilst they owe a duty of care to the child to act reasonably, there is no duty of care owed to the parents.

In Ahmed the judge found that the primary duty of the local authority was to protect the surviving daughter from the claimant and ensure she did not suffer the same fate as her sister. Following the authority of JD, there was no question of a duty of care being owed to the claimant by the local authority. The judge also found as a matter of fact that the claimant had exceeded the contact permitted by his licence. The claim in misfeasance was struck out as having no reasonable prospect of success.

The claim under Article 8 of the Human Rights Act failed on the grounds that there was no interference by London Borough of Brent with any Article 8 right because they had not taken the decision to recall the claimant. The claims against the other defendants were also struck out save for one discrete issue as against the Ministry of Justice.


The immunity granted to local authorities has been under attack, most notably in C v Merthyr Tydfill (2010) where the Court refused to strike out a claim by a mother against a local authority. So, it is welcome to report a case where the Court has followed JD.

It also provides a good example of when it is appropriate to apply to strike out a claim. Although the hearing in this matter lasted for a lengthy seven days, it prevented a much longer and extremely costly trial. Whilst an application to apply to strike out a case is not always appropriate, it is worth considering, particularly in a factually unattractive case such as this: the court will not have a natural desire to compensate the claimant where the claimant is undeserving. A strike out is particularly desirable in social services matters where the claimant often has the benefit of LSC funding and recovery of costs will not be possible in any event.

Rebecca Wilson of Barlow Lyde & Gilbert LLP acted for the London Borough of Brent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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