The appellant children (X and Y) appealed against the refusal of their application for pre-action disclosure under CPR r.31.16 in relation to a possible negligence claim against the respondent local authority.

 

X and Y were sister and brother, born in 1995 and 2000 respectively. The local authority had had serious concerns from 1998 regarding domestic violence between their parents and their exposure to it, and obtained a care order in 2005. The children's guardian criticised the local authority's handling of the case prior to removal, and was given leave to release the case papers to the Official Solicitor with a view to a potential negligence claim. There was considerable delay in obtaining those papers. X and Y sought pre-action disclosure. The master found that it was likely that significant harm had been caused to them by their parents' behaviour but was concerned as to whether any additional damage had been caused by the delay in removing them. He concluded that the proceedings were not going to succeed and refused the application.

 

X and Y contended that the master had erred as, having found that their parenting had caused them harm, he should have found that harm had been caused throughout the period, including the period of delay, but had applied too strict a test to establishing a cause of action.

 

HELD: For a claim in negligence to succeed it was necessary to demonstrate not only that there had been a breach of duty, but also that damage had flowed from any such breach. In the instant case, it was necessary to show that harm had been suffered by X and Y during the period following the alleged breach of duty by the local authority. There was a logical flaw in the master's approach. In cases such as the instant one, the whole point of an application for pre-trial disclosure was that the files should be scrutinised to determine when a competent local authority should have applied for removal of the relevant child or children. Until that point had been identified, it would not be possible to determine how much harm had been suffered thereafter. Nor, it followed, would it be possible to assess the extent to which that harm was additional and/or such as to merit, in itself, an award of damages. The master had expressly recognised that "significant harm was likely to be caused … as a result of the drunken and violent behaviour of their parents which they witnessed, it would appear, almost daily". That would almost certainly include harm incurred following the hypothetical breach of duty. Accordingly, that was sufficient to pass the test of "a real prospect of success", Rose v Lynx Express Ltd [2004] EWCA Civ 447, [2004] B.C.C. 714 applied. It was too difficult to envisage how at the instant stage the case could be formulated in any greater detail. The master had set the bar too high, and it was therefore open to the court to exercise its discretion afresh. It might be that, on closer examination, causation would prove an insurmountable problem. Perhaps the long delay would be a factor in making any such assessment. However, the instant issue was regarding pre-trial disclosure, and there was sufficient material to justify exercising the court's discretion in favour of X and Y, Black v Sumitomo Corp [2001] EWCA Civ 1819, [2002] 1 W.L.R. 1562 considered (see paras 17-20, 22-24 of judgment). 

Appeal allowed