3.2.2. The Barrett and Phelps Cases: Re-evaluating the Role of Public Law Unlawfulness

We have seen that for a long time unlawfulness in one form or another constituted a necessary precondition of actions for the negligent exercise of statutory discretion. The House of Lords now seems to take a very different view of the role of unlawfulness. In order to understand this shift, we must examine in some detail the decisions of the House of Lords in Barrett v Enfield LBC¹³⁸ and Phelps v Hillingdon LBC.¹³⁹

In Barrett the claimant brought an action in damages for the psychiatric injury caused by the alleged negligence of a local authority and its employees in the treatment of him when he was in their care.¹⁴⁰ It was alleged that the authority was negligent in failing to arrange his adoption, (p.47) organizing inappropriate placements with foster parents and residential homes, not obtaining psychiatric treatment for him, and mismanaging both his re-introduction with his mother and his relationship with his half-sister. The local authority applied to have the action struck out, arguing that it was not fair, just, and reasonable to impose a duty of care in relation to the exercise of its statutory discretion regarding a child in care. The Court of Appeal acceded to the striking-out application.¹⁴¹ The House of Lords disagreed. Their Lordships refused to strike out the claim and delivered a judgment of great significance.

The full impact of the decision will be assessed in the next chapter. At this juncture, we will primarily focus upon their Lordships' contribution to the legality–liability debate. For this purpose, it is necessary to look closely at the judgments of Lord Slynn and Lord Hutton.

Lord Slynn started his discussion of this issue by asserting that when a public authority acts according to a statutory obligation, liability in tort cannot arise unless the statute so provides.¹⁴² If injury is caused when a public authority is acting under a statutory power, then liability cannot arise for acts which are within the parameter of the statutory power. This defence of statutory authorization will not, however, be available if the power was exercised in a wholly unreasonable manner. His Lordship emphasized that acts which involve the exercise of discretion can be subject to a duty of care. Only if the administrative act concerns issues which are not justiciable will a claim be barred.¹⁴³ This element of the judgment covering the notion of justiciability will be analysed in the next chapter.¹⁴⁴ Lord Slynn made crucial points about the notion of invalidity. He confessed that he shared Lord Browne-Wilkinson's reluctance to inject administrative law notions into the law of negligence.¹⁴⁵ In a crucial part of the judgment, his Lordship asserted that it was inaccurate to reason that liability could not arise without it being shown that an authority or its employees had acted in excess of power.¹⁴⁶ It was argued that the test of invalidity is not conclusive. It is the normal conditions of a duty of care as set out in Caparo Industries Plc v Dickman¹⁴⁷ that must be satisfied.

Lord Slynn seems to have intended to expunge public law concepts of invalidity from this area of the law. Some doubts may arise from his comment that a claim in negligence for the exercise of statutory discretion is unlikely to succeed ‘unless it is wholly unreasonable so as not to be an exercise of the discretion’.¹⁴⁸ This should not be seen as a reference to invalidity. It should rather be interpreted as a preference for a gradualist approach to determining negligence liability of public authorities by (p.48) modulating the standard of breach in line with the nature of the administrative task involved.¹⁴⁹

Lord Hutton was even more explicit in asserting the autonomy of negligence from administrative law notions of invalidity. He held that the courts should apply the common law concept of negligence rather than stipulating Wednesbury unreasonableness as a precondition of liability.¹⁵⁰ Lord Hutton considered that the key aspect of previous cases was that non-justiciable issues should not be examined by the courts in negligence actions. As long as no such policy considerations are involved, the courts should apply the normal elements of a negligence action.

In sum, therefore, Barrett seems to represent a movement away from invalidity as a precondition for an action in negligence against public authorities. This approach was confirmed by the House of Lords in the subsequent decision of Phelps v Hillingdon LBC, which arose from four joined appeals concerning the alleged liability in negligence of Local Education Authorities (LEAs) for the provision of educational services for children with special educational needs.¹⁵¹

In this case, Lord Slynn again emphasized in his judgment the primacy of the common law principles of negligence.¹⁵² Courts will decide that an issue is non-justiciable only where it concerns the weighing of competing public interests or where the decision has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials.¹⁵³ Otherwise, the ordinary private law test applies.¹⁵⁴ Lord Nicholls also primarily relied upon the principles of professional negligence in determining tort liability in the education sphere.¹⁵⁵ Lord Clyde, whilst recognizing that account must be taken of the statutory framework,¹⁵⁶ also adopted a similar line.¹⁵⁷

(p.49) It is clear from these decisions that the current approach is to limit the impact of public law notions of invalidity in tort law. Indeed, in certain respects, their Lordships seem to have been very radical. In Barrett, Lord Hutton suggested—using some creative interpretation of precedent¹⁵⁸—that liability could arise from decisions which were within the ambit of a public body's discretion. This approach seems to be supported in Phelps, as Lord Slynn summarized the decision in Barrett thus: ‘[t]his House decided…that the fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can brought in respect of them.’¹⁵⁹ And yet, this marks a stark departure from the previous stance of the courts. The general premise has always been that in order for negligence liability to arise the defendant must have acted outside the ambit of its discretion.¹⁶⁰ The new approach would also seem to be in contrast to the rules governing judicial review of administrative acts. An administrative decision which is squarely within the scope of the authority's discretion cannot be challenged successfully in a judicial review action on the basis of unreasonableness.¹⁶¹ According to Lord Hutton in Barrett, and Lord Slynn in Phelps, it can now in a negligence action.

To understand this problem one must look to the relationship between the notion of reasonableness in damages claims and reasonableness in actions for judicial review.¹⁶² After Barrett and Phelps, it initially would seem that a gap has arisen in the meaning of these two types of reasonableness. In judicial review actions, orthodox theory stipulates that courts will intervene on the grounds of the unreasonableness of a decision only if it is shown that the public authority's act is so unreasonable that no reasonable authority could have taken it.¹⁶³ According to the dicta above, a negligence action concerning the same decision could succeed without the need to show Wednesbury unreasonableness in its orthodox sense. (p.50) Indeed, as long as policy issues are not concerned, it would seem—at least according to Lords Hutton and Slynn—to be irrelevant whether the decision was within the ambit of the public body's discretion once the elements of a negligence action are made out. For claimants, this would seem to favour actions in damages over judicial review. And yet, the premise for judicial restraint in adjudging the acts of public authorities is the same in both scenarios.¹⁶⁴ It may even be thought that in some circumstances financial liability will have wider implications for the decision-making of public authorities than judicial review.

One way to resolve this conundrum would be to take account of elements of convergence in the meaning of reasonableness in these two types of action. On the one hand, there is some evidence of a dilution of the orthodox meaning of Wednesbury unreasonableness in the context of judicial review.¹⁶⁵ On the other hand, not only does the notion of reasonableness as articulated in professional negligence cases through the Bolam test of breach¹⁶⁶ afford a considerable margin of protection to defendants,¹⁶⁷ but the courts have often referred to the fact that the standard of care applied will also take account of the fact that professionals and public servants are often taking difficult and sensitive decisions.¹⁶⁸ From this perspective, the bases of judicial remedies in respect of discretionary acts of public authorities might not be as divergent as initially thought.

The judgments in Barrett and Phelps have gone some way towards reshaping the relationship between liability in tort and the public law notion of illegality. The movement away from invalidity as a precondition for an action in negligence against public authorities is a welcomed rationalization of this area of the law.¹⁶⁹ The delimitation problem has been (p.51) recognized and resolved. By moulding the duty of care in line with the surrounding statutory framework and by taking account of the difficulties and sensitivities of decision-making at the breach level, the courts can adopt a measured approach to claims concerning differing types of administrative activity.