3.2. Ultra Vires and Negligence Liability

In the tort of negligence, an ultra vires administrative act which causes loss does not per se give rise to liability. Satisfying the conditions for annulment in a judicial review action does not equate with wrongfulness as expressed in the breach of a duty of care in negligence. This is clear from many cases in the past,¹⁰³ and was categorically asserted by Lord Browne-Wilkinson in X (Minors).¹⁰⁴

A more controversial question has been whether ultra vires is a necessary precondition of liability. This is a significant point. Must claimants prove public law invalidity before a court will countenance the liability in negligence of public authorities? If so, then given the restrictive heads of judicial review in English law, this would constitute an effective control mechanism on liability. The leading cases on this issue are now Barrett v Enfield LBC¹⁰⁵ and Phelps v Hillingdon LBC.¹⁰⁶ To appreciate the impact of these decisions, they must be read in the light of previous cases. An initial section will focus upon the cases covering this issue prior to Barrett and Phelps, in particular Dorset Yacht v Home Office¹⁰⁷ and X (Minors). The effect of Barrett and Phelps will then be evaluated.

3.2.1. The Status Quo Ante: Unlawfulness as a Precondition of Liability

The analysis must start with a consideration of the famous case of Dorset Yacht v Home Office.¹⁰⁸ The Home Office was sued by the owners of a (p.42) yacht moored off Brownsea Island for damage caused to the boat by borstal boys who had been left unattended by prison officers. It was held that the borstal officers owed the claimants a duty of care to prevent boys under their control from causing damage to property, and that the Home Office could be vicariously liable for this tort.

Lord Diplock held that a necessary precondition of liability in negligence of a public body was that it had acted ultra vires. He argued that if the acts of the officers were contrary to the instructions of the Home Office, they would effectively be ultra vires as outside the limits of the discretion delegated to them.¹⁰⁹ Traces of this concern can be detected in other judgments in Dorset Yacht. Of particular significance in later cases was Lord Reid's judgment. He held that in cases where a public servant was accorded a statutory discretion no action would lie unless it was shown that there had been ‘no real exercise of the discretion which Parliament has conferred’.¹¹⁰

In Dorset Yacht, there was a consensus amongst the majority in the House of Lords that for a claimant to bring a negligence action for the exercise of statutory functions, the defendant authority must have acted outside the scope of the statutory discretion.¹¹¹ In subsequent cases this was interpreted as entailing that ultra vires was a necessary prerequisite of administrative liability.¹¹² In Lonrho Plc v Tebbit,¹¹³ Sir Nicolas Browne-Wilkinson VC (as he then was) held—albeit reluctantly—that:

Unless the acts done under the statutory discretion were ultra vires that discretion, there could be no cause of action in negligence…in my judgment I am bound by the decision in the Dorset Yacht case to hold that it is a prerequisite of liability in negligence that the acts complained of were ultra vires.¹¹⁴

Until X (Minors), it appeared that claimants would have to show public law invalidity in order to sustain a claim in negligence concerning the exercise of statutory functions by a public body.¹¹⁵ The limited grounds of review ensured that this was an effective control mechanism upon the (p.43) scope of state liability. It also ensured that judicial intervention in negligence actions was no wider than that in judicial review.

A different view was taken in X (Minors). Lord Browne-Wilkinson rejected any role for ultra vires in determining the tort liability of public authorities, denying that it was ‘either helpful or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence’.¹¹⁶ In attempting to banish public law notions of illegality from this sphere, Lord Browne-Wilkinson was faced with overcoming the stipulation laid down in Dorset Yacht that the exercise of statutory discretion must be outside the ambit of the public body's discretion. Lord Browne-Wilkinson's interpretation of this tenet is rather controversial. Relying predominantly upon Lord Reid's judgment in Dorset Yacht, his Lordship asserted that there could be no liability unless ‘the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority’.¹¹⁷ Although this formula is not entirely without ambiguity, it is clear from other parts of his judgment that he was referring to a standard akin to Wednesbury unreasonableness.¹¹⁸ Later in his judgment, he indicated that the requisite level of carelessness would be committed only by a ‘grossly delinquent authority’.¹¹⁹ This results in a paradox. Whilst doubting the relevance of any public law notions of invalidity in the tort of negligence, Lord Browne-Wilkinson's judgment nonetheless ushered in a specific head of unlawfulness to play an important role in negligence actions against public authorities.

The Wednesbury requirement was applied in subsequent case law. In Stovin v Wise,¹²⁰ which concerned an allegedly negligent failure to exercise a statutory power, Lord Hoffmann held that one of the minimum preconditions for founding a duty of care on a statutory power was that it would ‘have been irrational not to have exercised the power so that there was in effect a public law duty to act’.¹²¹ The reference to the public law notion of irrationality mirrors Lord Browne-Wilkinson's earlier requirement of Wednesbury.

Not all the post-X (Minors) cases were unequivocal in their support of the Wednesbury requirement. Judges in other cases showed less enthusiasm.¹²² It is submitted that the introduction of the Wednesbury principle (p.44) into negligence actions is questionable in terms of both principle and precedent.¹²³ As regards the case law authority for the Wednesbury stipulation, Lord Browne-Wilkinson relied heavily¹²⁴ upon an obiter passage of Lord Reid's judgment in Dorset Yacht, in which Lord Reid had referred to the fact that the authority's ‘discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred’.¹²⁵ There is some doubt whether Lord Reid actually intended to apply the Wednesbury test in its orthodox sense of extreme unreasonableness.¹²⁶ Lord Reid was clearly anxious to avoid penalizing public authorities for mere administrative errors.¹²⁷ Yet, it seems unlikely that he would have intended the Wednesbury test to be used for this purpose.

In terms of principle, one of the main worries of asserting extreme unreasonableness as a gateway to tort actions for the negligent exercise of statutory functions is the severe restriction on negligence actions which this entails. Indeed, Lord Browne-Wilkinson himself recognized, in an extrajudicial address, that for the individual complainant in a tort action this hurdle ‘is an enormous burden to assume if you are seeking to recover in negligence’.¹²⁸ It does seem wrong that all but a ‘grossly delinquent authority’¹²⁹ should effectively be accorded an immunity for the negligent exercise of a statutory discretion.

The particular character of the Wednesbury standard is unsuited to determining whether a public servant has acted outside the ambit of his power in terms of a negligence action. The focus of the Wednesbury test in judicial review actions is undoubtedly upon the substance of the decision taken. Thus, reliance upon this head of review as a threshold in private law claims would exclude actions founded upon violations of procedural safeguards. As has been pointed out by Cane, it seems wrong to rule out the possibility of a public employee committing the tort of negligence by violating the rules of natural justice.¹³⁰

(p.45) The proponents of the Wednesbury test in this sphere are also confronted with a problem of delimitation. The thrust of this delimitation problem is that the precondition of Wednesbury cannot apply to all the activities undertaken by a public body on the basis of statutory authority, as this would also cover many routine acts of negligence for which no judicial restraint is required. The argument is as follows. Public bodies acting pursuant to statutory authority engage in a whole variety of activities. Certain of these acts will involve decision-making of a delicate kind, adjudication upon which necessitates judicial restraint. Indeed, some acts will involve considerations which are entirely inappropriate for judicial resolution, on the basis that they involve non-justiciable policy concerns.¹³¹ The majority of these activities, however, will not be automatically excluded from judicial scrutiny in civil actions. Within this category of justiciable acts, there is a whole swathe of routine activities pursued by public bodies for which the existence of a statutory framework makes little impact. They include the ordinary acts of teachers driving pupils to a football match in the school minibus, or nurses attending to a patient in hospital. In all these cases of routine activities, it would be inequitable to apply a precondition of public law vires. All these routine acts have direct analogies in the private sector, for which the ordinary rules of negligence simply apply.¹³² It would be illogical to assert that invalidity is a condition precedent of a negligence action against a nurse in a public hospital, whereas no such hurdle exists for a patient negligently treated in the private sector. If it is accepted that it is undesirable to introduce the concept of invalidity in relation to these routine acts of negligence committed by a public authority or its servants, then one is presented with a problem of delimitation. How does one differentiate between routine and non-routine acts? What are the criteria by which one determines whether Wednesbury unreasonableness becomes a prerequisite?

This problem was confronted by Lord Browne-Wilkinson in X (Minors). His Lordship drew a dichotomy between, on the one hand, the manner in which a statutory discretion is exercised and, on the other hand, the actual implementation of that decision in practice.¹³³ This distinction was of critical importance for a person claiming damages in negligence from a public body. If the impugned act fell within Lord Browne-Wilkinson's second category of decisions, those relating to the practical implementation, then the ordinary rules of negligence would (p.46) apply.¹³⁴ A private law duty of care could arise provided it was not ‘inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties’.¹³⁵ However, if it transpired that the allegedly tortious act concerned the first category of decisions involving the exercise of statutory discretion, then, in addition to the normal ingredients of a negligence action, the claimant would also assume the ‘enormous burden’ of surmounting the Wednesbury test.

A good deal of uncertainty pervaded the distinction between decisions involving the exercise of statutory discretion and the practical implementation stage.¹³⁶ Other attempts to find distinguishing criteria proved similarly problematic.¹³⁷

To sum up the position at this stage, the stipulation of Wednesbury as a precondition of administrative liability was highly contentious. Not only did this result in delimitation problems. It was also clear that this principle as applied in X (Minors) was very inflexible in its high level of unreasonableness and focus upon the substance of the decision taken. Important steps towards clarification were taken in two recent cases.