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Mr & Mrs C v Devon County Council, 23 September 2005

14 October 2005
The issues

Pending appeal to the European Court of Human Rights – D v. East Berkshire Community Health NHS Trust – Whether Claim Should be Stayed – Stay

The facts

The Claimants were from August 1998 engaged as foster carers for the Defendant. In November 1999 five foster children were removed from the care of the Claimants due to concerns over their well being. The Claimants claimed for damage caused to their reputation as a consequence of the removal of the children.

Whilst liability was in any event in dispute the question of whether or not social services or other healthcare professionals should have any legal liability to carers (or indeed parents) in circumstances where there had been a mistake in diagnosis of child abuse had been dealt with in the case of D v. East Berks NHS Trust. The House of Lords ruled firmly that as a matter of public policy that there should be no liability.

The Claimants acknowledged that on the basis of the law as it currently stands they had no cause of action against the Defendant. They instead sought a stay of proceedings citing the fact that D. v. East Berks was to proceed to the European Court of Human Rights. They argued that if the case were dismissed at this stage they may suffer if the ECHR subsequently ruled that the decision of the House of Lords was contrary to the European convention on Human Rights.

The Defendants argued, amongst other things, that the time taken for the ECHR to deal with the matter could only result in substantial prejudice to the Defendant both in terms of the requirement to hold public funds in reserve against the claim and in respect of the difficulty they would have in mounting a cogent defence possibly many years in the future.

The Defendant adduced some evidence to suggest that it could take as long as six years for the case to be heard by the ECHR.

The Defendant had already consented to lengthy stays pending the decisions of the Court of Appeal and the House of Lords in D v. East Berks.

The decision

The stay would not be extended further. The Judge was particularly concerned about the possible prejudice to the Defendant in allowing the case to be stayed for what could transpire to be a number of years.

On the basis that the Claimants conceded that as matters presently stand it would be impossible to defend a strike out application it was not reasonable to put in place a stay pending an entirely speculative appeal to the ECHR.

Comments

Following the refusal a Notice of Discontinuance was filed by the Claimants.

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