Torts and crimes

Page 531: The trespass in Cooper was a tort. Was it also a crime? Can you think of a tort that is not a crime? A crime that is not a tort? An unlawful action that is neither a tort nor a crime?

• If the Secretary of State’s warrant was not a lawful defence to the tort of trespass, could it be a lawful defence to a criminal charge?
• Could the Secretary of State himself have been charged with a crime? Could Entick have sued him in tort, on the ground that the Secretary of State ordered the trespass to Entick’s property?
• One suggestion concerning unlawful acts that are neither torts nor crimes: you would probably find that most of the actions held to be unlawful in this book (e.g. in Anisminic, Padfield, A and X v Home Secretary [2004] UKHL 56, Ridge v Baldwin, etc. etc.) were neither torts nor crimes. Why is that generally the case with unlawful conduct in administrative law?

East Suffolk Rivers

Page 538: Was the Rivers Authority’s conduct unlawful in East Suffolk Rivers?

• You might say ‘yes’, because it was Wednesbury unreasonable (that is, no reasonable public authority would have fought the flooding in the way that the Rivers Authority’s men tried to fight it).
• Should a landowner in a similar situation today be able to ask a court for a mandatory order requiring the Rivers Authority to do something that isn’t ridiculous?
• Perhaps it is not quite clear! If the Rivers Authority had no statutory duty to take any measures, then could the landowner get a mandatory order? If not, it seems that it is not unlawful for the River’s Authority to take extremely unreasonable measures (if they caused no further harm by those measures).

Why is the ambulance service different from the police and fire services?

Page 555: In Michael [81], Lord Toulson evidently viewed the different treatment of 999 calls for ambulances as justified by special considerations about ambulance services. Can you reconcile Michael and Capital & Counties with Kent v Griffiths?

• It does seem puzzling that if the ambulance service, the police, and the fire brigade all carelessly fails to respond to a 999 call, the ambulance service will be liable but the police and the fire brigade will not. Perhaps the explanation is at least partly that the ambulance service is integrated with the National Health Service.
• As you can see from the cases on negligence in Chapter 14, the courts are more prepared to impose a duty of care in negligence on medical personnel. The courts will readily impose on doctors a duty to take care to make the patient better off (see in particular Phelps v Hillingdon [2001] 2 AC 619), but they hesitate to impose such a duty on the police and the fire services.

• In Kent v Griffiths, the defendant ambulance service merely failed to help Mrs Griffiths. But the ambulance service undertook to take her to hospital, and that feature provides another potential way of distinguishing the case from Michael.
• And Lord Woolf offered another distinction: that ‘The police and fire services' primary obligation is to the public at large, while the ambulance service serves the particular person whom they are sent to assist. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent fire spreading. In the case of both services, there is therefore a concern to protect the public generally. … in the case of the ambulance service in this particular case, the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called.’ Kent v Griffiths [47].
• Is that convincing?

Summary

Page 557: Can you find the authority for the propositions in the summary on public authorities’ duties of care?

• Hint: it is all in chapter 14.

Chapter 15: Contract

Breach of contract and judicial review

Page 595: A breach of contract is unlawful. So is breach of contract a ground of judicial review?

• No! It’s a reminder that judicial review is not a general process for quashing unlawful decisions (see 2.7). You cannot seek judicial review on the ground of breach of contract, because you don’t need judicial review for that purpose: the judicial review jurisdiction is a special judicial power to control public authorities, and does not have the general role of quashing unlawful action. If you have a remedy for breach of contract in an ordinary claim, there is no need for judicial review. And there is no reason for it: ‘in general questions of construction of the contract or breach will attract no special public law principles, and judicial review is not an appropriate procedure to resolve such disputes’ (R (Molinaro) v Kensington and Chelsea [2001] EWHC Admin 896 [66] (Elias J)).
• But if a public authority breaks an agreement that is not a contract, you may need judicial review and you may be able to get it, as we know from the law on legitimate expectation (section 8.4). In R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, Lord Templeman said, ‘In principle I see no reason why the appellant should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the appellant because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation. Such a decision falls within the ambit of an abuse of power for which in the present case judicial review is the sole remedy and an appropriate remedy.’ (866) So if it is an abuse of power to break an agreement, but there is no contract, then you can seek judicial review. That is an instance of judicial review for unfair disappointment of a legitimate expectation.

Public authorities

Page 606: Is the Panel on Take-overs and Mergers (http://www.thetakeoverpanel.org.uk/) a public authority?

• No, of course not, in the sense that it was not created or operated by any agency of the state. But yes of course it is a public authority, in the sense that it was created to serve a purpose for the community, and to do so in a way that gave it authority to pass judgment on behalf of the community, concerning participation and practice in a public financial market. The term ‘public authority’ has no special technical meaning and can be used in different senses.
• Was the court right to subject the Panel to judicial review?

Page 616: Can and should the judges do anything for Alice [hint: see 15.5.2]?

• Alice is paying a private agency for her own care in a nursing home. She cannot use administrative law to help her, bebecause the care agency is not performing a public function.
• Suppose that the agency wants to evict her from the nursing home, and Alice wants to complain that they are doing so without due regard for her private life. She cannot claim that they are acting unlawfully under the Human Rights Act because the agency is neither a ‘core’ nor a ‘hybrid’ public authority. Her legal relationship with the care agency will be defined by a contract. The contract itself ought to protect her from abuse, and the courts can protect her by interpreting the contract, or holding that there are implicit terms prohibiting abuse.
• Some forms of abuse of a nursing home patient would be a tort, or a crime, and Alice is protected by the law of tort and crime in just the same way as a patient in a publicly-operated care home.
• The care agency will also be subject to regulation under the Health and Social Care Act 2008, and to inspection by the Care Quality Commission to give effect to the regulations and to prosecute agencies for offences under the regulations (see http://www.cqc.org.uk/guidance-providers/regulations-enforcement/regulations-service-providers-managers).
• The interesting question is whether that array of protections is enough for Alice. If so, then anything that the Human Rights Act gives Candice is more than she needs, in order for her private life to be respected.