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Boys win appeal over striking out of claim over harassment on estate

A High Court judge has ruled that the claims of two boys against a council for negligence in failing to protect them from harassment from neighbours on the estate where they lived were wrongly struck out.

The case of N & Anor v Poole Borough Council [2016] EWHC 569 (QB) (16 March 2016) involved an appeal by the claimants, CN and GN, from a Judgment and Order of Master Eastman of 2 October 2015.

CN, who is severely disabled, and GN argue that they suffered prolonged abuse, anti-social behaviour and criminal behaviour perpetrated by members of a family who lived on their estate. CN had attempted suicide.

Poole Borough Council had housed the claimants there between May 2006 and December 2011.

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The claims against the local authority were:

(i) A claim by all of the claimants, including CN and GN’s mother, in common law negligence for the defendant's failure to protect them as a consequence of its failure to remove the family from their housing on the estate to a place of safety; and

(ii) A claim brought by the boys only, both of whom were at all relevant times under the age of 18 years, for the failure to protect them as children and to remove them from home (and if necessary take them into the care of the local authority) if that was required to protect them from personal injury.

CN and GN appealed from Master Eastman’s striking out of the second claim which concerned them alone. The mother did not appeal from the striking out of her claim.

Mrs Justice Slade said the principal issue in the appeal was whether the judgment of the Court of Appeal in D v East Berkshire NHS Trust and Others [2004] QB 558 had been implicitly overruled by the House of Lords in Mitchell v Glasgow Council [2009] 1 AC 874 and by the Supreme Court in Michael v Chief Constable of Wales [2015] 2 WLR 343.

The judge did not accept the submission by counsel for Poole that such overruling had taken place.

Mrs Justice Slade said she was bound to apply D v Berkshire, the result being that the boys’ claims had been wrongly struck out and that the case of X (Minors) v Bedfordshire County Council [1995] 2 AC 633 did not preclude them from pursuing their claim in the circumstances of the case.

“The claim will be considered on its particular facts to ascertain whether all the elements necessary to establish a cause of action in negligence are present: foreseeability, proximity or assumption of responsibility and that it is fair, just and reasonable to impose liability,” she said.

“Whether a common law duty of care was owed by the council to CN and GN will depend upon a full examination of the facts. This issue is not apt for determination on an application to strike out the claim. Actions can only be struck out under CPR 3.4(2)(a) on the grounds that they disclose no reasonable cause for bringing the claims. The Master erred in so finding in this case.”

Emma Jones, a solicitor at Leigh Day who is acting for the claimants, said: “CN and GN suffered the most difficult circumstances when they were living on an estate next to a family who had carried out criminal and anti-social act that had been reported to Poole Borough Council before the family moved in.

“This was a vulnerable family which included a disabled child and the council should have protected them from a foreseeable risk of harm.

“I am pleased that this judgment will allow CN and GN will now be able to bring a claim for compensation at a full trial against Poole Borough Council after suffering from years of harassment.”

Tim Martin, Head of Legal, Democratic and Strategy Services, Borough of Poole, said: “It is not our policy to comment on ongoing court cases but we are aware of the case and will be defending our position if it goes to trial.

“We have a range of robust strategies in place to deal with anti-social behaviour (ASB) in Poole. We regularly review our response to ASB as we understand the distress that can be caused to vulnerable residents who might be subjected to inappropriate behaviour.

“Any resident in Poole who is concerned about ASB is urged to report their concerns to either the council or another agency such as the Police to be investigated.” 

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