QB-2020-004171 - [2025] EWHC 2773 (KB)

In N v Poole Borough Council (AIRE Centre and others intervening) [2019] UKSC 25; [2020] AC 780, Lord Reed (who delivered the leading judgments) explained at para. 64 that:

"Robinson did not lay down any new principle of law, but three matters in particular were clarified. First, the decision explained, as Michael had previously done, that Caparo did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fall outside them. The question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. It follows that, in the ordinary run of cases, courts should apply established principles of law, rather than basing their decisions on their assessment of the requirements of public policy. Secondly, the decision re-affirmed the significance of the distinction between harming the claimant and failing to protect the claimant from harm (including harm caused by third parties), which was also emphasised in Mitchell and Michael. Thirdly, the decision confirmed, following Michael and numerous older authorities, that public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles. That is the basic premise of the consequent framework for determining the existence or non-existence of a duty of care on the part of a public authority." (emphasis added)

Lord Reed then identified the current principles in relation to a duty of care at para 65 as follows:

“It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.”

It is not an answer in respect of the creation of a source of danger that a more sophisticated person would have appreciated the true position if the claimant cannot be expected to have realised the same. As was said in Kevin So v HSBC Bank plc [2009] EWCA Civ 296 per Etherton LJ (as he then was) at para. 51:

“….Looking at the matter objectively, it was likely that Mr So and Mrs Lu would be concerned to know, and would rely upon, HSBC's representation that HSBC intended to adhere to the instructions in the LoI and had accepted those instructions. HSBC did not know whether or not they were sophisticated investors. Even if it be correct that a reasonably prudent investor would have sought advice on how the arrangements in the LoI would work in practice, there was no reason for an investor to seek advice on the truthfulness and reliability of HSBC's own representation that it had accepted the LoI and intended to comply with its terms…. the truth of the representations in the present case, being representations about HSBC's own intentions and beliefs, were uniquely within the knowledge of, and could only be verified by, HSBC itself. They were not verifiable by some independent expert….” (emphasis added)

In HXA v Surrey County Council [2024] 1 WLR 335, 358 at para. 87. Lord Burrows and Lord Stephens JJSC stated:

“It is clear that a local authority has relevant statutory duties and powers under, for example, the 1989 Act (see paras 22-33 above). It is also established law (see para 21 above), as laid down in X (Minors) v Bedfordshire CC, that, in respect of such duties and powers, there is no cause of action for the tort of breach of statutory duty even if the breach of statutory duty is a negligent breach. That does not mean that the common law tort of negligence has been excluded by statute. The statute is, in that respect, neutral. But what it does mean, as emphasised in N v Poole (see para 49 above), is that the courts must decide whether there is a duty of care at common law by applying to the public authority the same principles that would be applied if the public authority had been a private individual. See also, generally, the illuminating articles by MJ Bowman and SH Bailey, "Negligence in the Realms of Public Law - A Positive Obligation to Rescue" [1984] PL 277; SH Bailey and MJ Bowman, "Public Authority Negligence Revisited" (2000) 59 CLJ 85. It further means that one has to be very careful not to slide back to resting the duty of care, and breach, at common law on the mere fact that the public authority had statutory duties towards, and powers in respect of, the claimant. In our view, some of the submissions made by Ms Gumbel KC on behalf of HXA and YXA fell into this trap. That is, she sometimes relied on there being a statutory duty on the local authority to safeguard children in need as the very reason why there must be a duty of care owed to such children.As we have just indicated, what is required (which the courts, perhaps unhelpfully, have sometimes referred to - see paras 61(iii), 70, 72, 74, 80, 83 above - as the "something more" or "something else") is that there would have been a duty of care owed - because, for example, there is an assumption of responsibility - had the public authority been a private individual.This is not to deny that, assuming that there would otherwise be a common law duty of care owed, a particular statute may expressly or impliedly exclude that duty of care (emphasis added).”

In this context, the assumption of responsibility was said to have been at p. 360, para. 91:

“It is very common for the language of “assumption of responsibility” to be used at a high level of generality. However, it helps to sharpen up the analysis always to ask, what is it alleged that the defendant has assumed responsibility, to use reasonable care, to do? Although Ms Gumbel framed the assumption of responsibility in several different ways, in essence she needs to satisfy the court that there was, arguably, an assumption of responsibility, to use reasonable care, to protect HXA and/or YXA from the abuse that the local authority was aware of or ought to have known about….(emphasis added).”

To like effect, in Tindall v Chief Constable of Thames Valley Police [2024] 3 WLR 822, in the judgment of Lord Leggatt and Lord Burrows JJSC, it was said at para. 75:

“While somewhat elusive—and possibly having different requirements in different contexts (e g pure economic loss and misrepresentations)—for present purposes an assumption of responsibility involves the idea that a person may, by words or conduct, expressly or impliedly promise (or undertake or give an assurance) to take care to protect another person from harm.”

In Tindall v Chief Constable of Thames Valley Police [2024] 3 WLR 822, in the judgment of Lord Leggatt and Lord Burrows JJSC, it was stated: (with reference to the case of Michael v Chief Constable of South Wales Police [2015] UKSC 2)

“38.

Lord Toulson, who gave the majority judgment, affirmed the general rule that there is no duty of care to prevent harm caused by others. He said, at para 97:

"The fundamental reason ... is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else."

He went on to clarify that the rule is not absolute and referred, at paras 98-100, to what he described as two well recognised exceptions. The first, as exemplified by Dorset Yacht (see para 19(iii) above and para 79 below), is a situation where the defendant is in a position of control over the third party who has directly caused the damage…”

…

“44.

Having examined some of the main cases, we can summarise the central principles to be derived from them as follows:

(i)

There is a fundamental distinction, drawn in all the above cases, between making matters worse, where the finding of a duty of care is commonplace and straightforward, and failing to confer a benefit (including failing to protect a person from harm), where there is generally no duty of care owed.

(ii)

An example of the former (making matters worse), where there was held to be a duty of care owed by the police, is Robinson. As regards other emergency services, a more difficult example is the Hampshire case in Capital & Counties (turning off the sprinkler system). All the other cases mentioned fell on the other side of the line.

(iii)

A difficulty in drawing the distinction (between making matters worse and failing to protect from harm) is how to identify the baseline relative to which one judges whether the defendant has made matters worse: see Sandy Steel, "Rationalising omissions liability in negligence" (2019) 135 LQR 484, 487. The cases show that the relevant comparison is with what would have happened if the defendant had done nothing at all and had never embarked on the activity which has given rise to the claim. The starting point is that the defendant generally owes no common law duty of care to undertake an activity which may result in benefit to another person. So it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise.

(iv)

Another way of stating the general rule is to say that a person owes a duty to take care not to expose others to unreasonable and reasonably foreseeable risks of physical harm created by that person's own conduct. By contrast, no duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendant's conduct - whether from natural causes (as in East Suffolk) or third parties (as in Michael and Ancell).

(v)

Although not made out in any of the above six cases, there are exceptions to the general rule that there is no duty of care to protect a person from harm, for example, where the defendant has assumed a responsibility to do so or has control of a third party.” (emphasis added)

…

“58.

We also agree with the claimant that the detailed formulation of the interference principle by McBride and Bagshaw is correct. In particular, it is not enough to show that the defendant has acted in a way which had the effect of putting off or preventing someone else from helping the claimant. Rather, in line with the well-established approach to establishing any duty of care, for a duty of care to arise it is necessary to show that the defendant knew or ought to have known (ie that it was reasonably foreseeable) that its conduct would have this effect.”

In Desmond v Chief Constable of Nottinghamshire Police [2011] PTSR 1369, Sir Anthony May P. said at paras. 38-40:

“38.

A statutory power cannot of itself generate a common law duty of care: see East Suffolk Rivers Catchment Board v Kent [1941] AC 74 and the Gorringe case [2004]1 WLR 1057, para 41. Whether a statutory duty gives rise to a private common law cause of action is a question of construction of the statute. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for its breach. If the statute does not create a private right of action, it would be unusual, to say the least, if the mere existence of the statutory duty could generate a common law duty of care. The existence of a broad public law duty alone can scarcely give rise to a common law duty of care owed to an individual.

39.

The common law should not impose a concurrent duty which is inconsistent, or may be in conflict with, the statutory framework. If the policy of the statute is not to create a statutory liability to pay compensation, the same policy should also ordinarily exclude the existence of a common law duty of care. Lord Scott put the essential principle for statutory duties as follows in the Gorringe case, at para 71:

“if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty.”

40.

There may be special circumstances in which a public authority has assumed an obligation to a claimant to act in a particular way. But if Parliament stops short of imposing a private law duty in favour of individuals, sufficiently compelling special circumstances are required, beyond the mere existence of the duty or power, to make it fair and reasonable to impose a duty to an individual of a scope to be derived from the special circumstances. There may be particular cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities such that they are taken to have assumed responsibility to a claimant so as to give rise to a common law duty of care.” (emphasis added)

41.

Factors to be taken into account include the subject matter of the statute and the intended purpose of the statutory duty or power; whether a concurrent private law duty might inhibit the proper and expeditious discharge of the statutory functions; whether such a duty would expose the authority's budgetary and other discretionary decisions to judicial inquiry; the ability of the claimant to protect himself; and the presence or absence of a particular reason why the claimant was relying or dependent on the authority. If there is reliance, it may easily lead to the conclusion that the authority can fairly be taken to have assumed responsibility to act in a particular way. But reliance alone is usually not enough. Some statutory duties or powers are less susceptible to a concurrent common law duty than others. The law does not favour blanket immunity. See for these propositions Lord Nicholls (who dissented in the result) in Stovin v Wise [1996] AC 923 , 937 c -938 e . In the present case, we consider that the modified core principle to be derived from the Hill case [1989] AC 53 (see above) is relevant, but arguably not of itself determinative.

Of further assistance is the analysis of the Supreme Court is SXH v Crown Prosecution Service [2017] 1 WLR 1401 per Lord Toulson at para. 38:

“The duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests. To recognise a duty of care towards victims or suspects or both, would put the CPS in positions of potential conflict, and would also open the door to collateral interlocutory civil proceedings and trials, which would not be conducive to the best operation of the criminal justice system. Similar considerations are relevant when considering the applicability of article 8 in the context of a decision to prosecute. A decision to prosecute does not of itself involve a lack of respect for the autonomy of the defendant but places the question of determining his or her guilt before the court, which will itself be responsible for deciding ancillary questions of bail or remand in custody and the like.”

In the case of Suresh v General Medical Council [2025] EWHC 804 KB, a question arose as to whether there was a duty of care as regards the communication to a doctor in connection with an investigation against the doctor. The Court (Mr Marcus Pilgerstorfer KC) said at para. 170:

“The recognition of a duty of care to those who are subject to investigation would in my view risk giving rise to clear conflicts where the interests of those subject to the investigation would point in One Direction, whereas the duty to investigate in accordance with the overarching objective would point in the other...”

At para. 217, the Deputy Judge stated as follows:

“i)

Applying general principles in accordance with the framework identified in Robinson , in my judgment it would be inconsistent with the statutory scheme established under the Act and the Rules to hold that the GMC owes a duty of care to a doctor subject to investigation in relation to the timing, manner and content of the communication to him of that fact. The statutory powers and duties of the GMC restrict the scope of its liability in negligence as explained in the cases of D v East Berkshire, Jain, SXH , Robinson and Poole.

…

iii)

The pre- Robinson caselaw falls to be read in light of the developments explained in that and subsequent cases. I have examined and applied the general principles governing liability in negligence without needing to consider separately whether the existence of a duty is fair, just and reasonable, and within that context having recourse to policy considerations of the kind referred to in the older authorities….

iv)

Had it been necessary to give effect to policy considerations (as described by Lord Reed, or by affording such considerations a more centrally dominant role as Lord Hughes did in Robinson at [118]), I would have attached significant weight to those identified in cases such as Elguzouli-Daf and Brooks. Those considerations seem to me to apply just as much to a regulator in the position of the GMC as they do to the police and the CPS. Imposing a duty of care would in my judgment have a similarly chilling and diverting effect on the GMC's task of investigating fitness to practise in order to protect the public….As Lord Hughes observed in Robinson at [112] the Court can give effect to policy considerations where the consequences of defensive behaviour can scarcely be doubted; that in my view is the position here….”

The reference to Jain is to Jain v Trent SHA [2009] UKHL 4, An unsuccessful negligence claim for financial losses by the owners of a care home against a regulator in which Lord Scott held at para 28:

“… this line of authority demonstrates, in my opinion, that where action is taken by a state authority under statutory powers designed for the benefit or protection of particular class of persons, a tortious duty of care will not be held to be owed by the state authority to others whose interests may be adversely affected by an exercise of the statutory power. The reason is that the imposition of such duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of the statutory purpose.”

Where there are alternative remedies such as an appeal process and judicial review, this might be inconsistent with the finding of a duty of care at common law. This was the approach of the court in Neil Martin Ltd v Revenue and Customs Commissioners [2007] EWCA Civ 1041 at paras. 67-69 per Chadwick LJ:

“67.

The effect, in this Court, is that we must approach this appeal on the basis that Mr Harrison was wrong to tell Mr Martin, in June 1999, that the company's application for a tax certificate could not be accepted unless supported by the company's own accounts. The question which we have to consider is whether Mr Harrison assumed a responsibility to give Mr Martin, on behalf of the company, information which was correct. In my view the judge was right to hold that Mr Harrison did not assume a responsibility in that respect. It must be kept in mind that it was for the company to decide the basis upon which it would make an application under section 561(2) ICTA; and it was for the company to make that application in the manner (and in the form) prescribed by the Regulations. It was not for individual officers of the Revenue to tell applicants what had to be done: and there is nothing in the facts found by the judge to suggest that Mr Martin (or the company) thought that it was. They had consulted their own accountant; and, on the basis of his advice, they did not accept that the information which Mr Harrison had given was correct.

68.

The real complaint, in this context, is that in June 1999 Mr Harrison refused to accept an application which was not supported by the company's own accounts. But the remedy in respect of that refusal lay in the company's hands. It could have sought an order (in judicial review proceedings) requiring the Revenue to accept its application. Or it might have sought to treat the refusal to accept the application as a refusal to issue a certificate; and appealed from that refusal under section 561(9) ICTA.

69.

As I have said, it was for the company to make its application for a tax certificate in the manner (and in the form) prescribed by the Regulations. That, as it seems to me, provides the answer to the question whether it would be fair, just and reasonable to impose a duty of care on Mr Harrison in relation to the lack of a signature on the July forms at the time when those forms were left with him on 20 July 1999. We have copies of those forms in the documents supplied to us. The CIS3 form (Company Application Form) contains (on its face) the printed instruction: "To apply for a Certificate, read CIS3 Booklets A and B and then complete all of this form". The form provides for a declaration by the company secretary that he or she is applying for the company to hold a CIS6 tax certificate; and there is a box for his or her signature. The CIS8 form (Application Form for a Director or Company Secretary) contains the printed instruction: "If you want to apply for a Subcontractors Tax Certificate, fill in the rest of this page, sign the declaration at 3 overleaf . . .". Again, there is a box for the applicant's signature. In those circumstances Mr Martin could have been in no doubt that the forms required his signature. If an application was to be made on behalf of the company, it was his responsibility to ensure that the forms were signed. Although it was plainly sensible for the Revenue's internal procedures to make provision for its officer to check, when the application forms were lodged, that they had been signed, there is no basis for the imposition of a duty of care. In my view the judge was correct to hold that no duty arose in relation to Mr Harrison's failure to notice, on 20 July 1999, that the forms were unsigned.”

Chadwick LJ went on at para.72 to find that there was no common law duty of care to process applications within a reasonable time or to take care to avoid delay. On the other hand, at para. 73, he went on to find that a common law duty of care was owed in respect of an employee who chose to complete a declaration in support of an application for a registration card without the authority of the applicant. That went beyond an administrative mistake because the employee “Was not processing an application which had been made: he was assuming an authority to make an application which had not been made.”

In Tindall, at para. 68, the Court said the following about liability for omissions where the damage is caused by a third party such as the Robinson case:

“…Mr Bowen cited the many judicial statements urging caution before striking out a claim in an area of law which is uncertain and developing, and emphasising the desirability that any further development of the law should be on the basis of actual and not hypothetical facts: see eg X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 740-741; Barrett v Enfield London Borough Council [2001] 2 AC 550, 557; Waters v Comr of Police of the Metropolis [2000] 1 WLR 1607, 1613-1614. In the last of these passages Lord Slynn of Hadley described the law of negligence in relation to public authorities as such a developing area. That was a fair description when these cases were decided. But it is not true now. The law has since been settled by successive decisions of this court, particularly the seminal decisions in Michael and Robinson outlined earlier in this judgment. We agree with the Court of Appeal that the applicable law is clear and not in a state of flux. When it is clear, as it is here, that on the facts alleged taken at their highest no duty of care was owed, it would be unjust and a waste of resources to allow the claim to proceed to a trial.”

The Court was also referred to a decision of Carnwath J (as he then was) in R v Commissioners of Customs and Excise ex parte F & I Services [2000] STC 364 in which there were references to the fluid state of the law about negligence against public officials: see paras. 64 – 69. This has to be viewed in the light of the much more recent observations in the preceding paragraph from Tindall.

The Court was provided with a number of speaking notes which it has read. The Claimants submitted two notes of 35 pages and 10 pages respectively each dated 8 June 2025 in addition to a 10-page submission about the statutory scheme dated 5 June 2025. HMRC submitted a speaking note of 23 pages dated 6 June 2025. It is not intended to rehearse everything in these notes in this judgment. In particular the longer of the notes of the Claimants dated 8 June 2025 sets out in detail the facts and analysis in a number of cases including Banca Nazionale del Lavoro SPA v. Playboy Club London Limited [2018] UKSC 43; Welton v North Cornwall DC [1997] 1 WLR 570; 4U2 Ltd. v Glasgow [2025] SC GLA 10; Neil Martin Ltd v Revenue and Customs Commissioners [2007] EWCA Civ 1041. Account has been taken of these cases, and the summary of the law above suffices for the purpose of this judgment. Each case in this area is fact specific and the questions of assumption of responsibility and duty of care are very much fact dependent.