High Court allows appeal by claimant after council bids to withdraw admissions of liability in failure to remove case

An unnamed South Wales local authority has been stopped by the High Court from withdrawing three admissions of lability made in a lengthy dispute over the care while a child of J, who is now aged 20 and seeks damages.

In J v A South Wales Local Authority [2020] EWHC 2362 (Admin) Mr Justice Marcus Smith found the council involved acted improperly, and ruled that the authority could not make the changes, overturning a county court decision.

The admissions had been made by the local authority in 2012 and 2013.

J was born in 2000 and has claimed the local authority was in breach of its duty as it failed to remove J from his mother and her foster parents in the first month of his life and place him for adoption.

It admitted it should have allocated a social worker prior to birth who should have undertaken a full assessment of the mother's needs and that had this happened it was likely J would have been placed for adoption.

Marcus Smith J said it was clear that the local authority had a conflict of interest.

He explained: “The local authority was entitled to resist the claim, and put J to proof [but]  where the defendant – as here – also owes a duty to the claimant himself, it is incumbent upon the defendant to behave with extraordinary care given the conflict of interest that arises”.

The local authority said it was not in J's interests that quantum be determined in short order, but as the entity having care of J, the council “was in a position effectively to enforce its view as to what was in J's best interests even though it was the defendant to J's claim”, the judge said, adding that: “even if J's own advisers were of the view that the question of quantum ought to be resolved at once, that would be opposed by the local authority, advancing not its own interests but those of J”.

The judge noted the council’s argument that CN and GC v. Poole BC - which went to the Supreme Court - meant the law had changed such that no duty was owed and the admissions of liability no longer reflected the law, properly understood.

“The draft amendments went far beyond this purpose,” he said. “Not only is the duty of care denied, the admission that J would have been removed from the care of his birth mother within the first month of life and placed for adoption is also withdrawn and replaced by a non-admission.

“That is a significant change in the ambit of the factual dispute existing between the parties on the pleadings.”

J appealed on the grounds that the county court judge failed properly to consider and apply the overriding objective and/or to consider the interests of the administration of justice as required by CPR PD 14, failed properly to consider the prejudice that would be caused to J by allowing the admission to be withdrawn and failed properly to consider the stage in the proceedings at which the application to withdraw was made.

Marcus Smith J said: “This was not a settlement: but it bears many of the hallmarks of a settlement, and the judge should have considered the importance in this case of stability in closed transactions.

“In this case, the issue of liability was closed off in 2012, and the implications of permitting the local authority to resile from this position should have been, but were not, considered by the judge.”

He dismissed ground three but upheld the appeal on the first two grounds.

“Although a later change in the law may enable a party to seek to set aside a prior transaction like a settlement, I have no doubt in this case that the local authority was behaving improperly in seeking to withdraw in 2019 the admissions it had made in 2012,” Marcus Smith J said.

“Having effectively imposed on J – in what was said to be his own best interests – an adjourned quantum hearing, I do not consider that the local authority could properly have resiled from an admission of liability merely because the law had changed..”

He said J's interests “appear to have gone entirely unconsidered when framing the draft amended defence.

“The local authority appears to have been actuated entirely by its own interests (which I accept are proper and legitimate ones), but (and this I consider to be a culpable omission) without taking any account of the position it had put J in back in 2012.”

Mark Smulian