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Tag Archives: duty of disclosure

Author not liable for any wince-related injuries

This case is ‘about’ an application for an injunction to protect a person who was considered to be vulnerable but who had capacity to make their own decisions, but it is really ‘about’  the Local Authority sending 1400 pages to everyone on a Friday for a final hearing that started on Tuesday, with said documents undermining / flatly contradicting the evidence the LA had filed, so it has some broader implications.   I think most people reading this will have had the experience of suddenly being dumped with a huge stack of papers that appeared at the last minute, even if they weren’t quite as voluminous and devastating as this.  It is a salutary lesson that if you do ruin someone’s weekend by doing this, they are going to be highly motivated to make you pay hard for it.

 

London Borough of Croydon v  KR 2019

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2019/2498.html 

 

 

It is telling that the LA had to withdraw the case after the two social workers  gave evidence.

 

 

 

Read and wince

 

I had witness statements from Ms Jones, KR’s social worker; Ms Bamfield, ST’s social worker, and two witness statements from KF. I also had a short statement from KF and ST’s son, DF. I heard oral evidence from Ms Jones and Ms Banfield. I also had in the court bundle 1400 pages of background documents. I understand that these were sent to KR and ST’s lawyers on Friday, i.e. 3 working days before the trial started. Some of them had been previously disclosed, but it is almost impossible to tell which ones. Very few had been exhibited to the LA’s witness statements. The vast majority of these documents will necessarily never have been seen by KR or ST because they come from the LA’s records. Some of these documents paint a materially different picture from that in Ms Jones’ witness statements, particularly in respect of the degree to which ST was obstructing the carers from CSL accessing the property and at least checking on KR. They also paint a different picture of the degree to which KR was at risk.

 

 

 

17.          There are a number of points of concern to me about these documents. Firstly, it is not acceptable that they were only disclosed, at least in this form, so shortly before trial. The hearing date had been set down since 21 May 2019, and the late disclosure meant the bundles were both unmanageable, and in reality, unreadable. Secondly, the disclosure appears to have been in the form of simply putting all these documents in the court bundle without any attempt to agree the bundle. Again, this is not acceptable, at the least attempts must be made to agree a bundle, and the bundle should be limited to documents which will be necessary for the judge to consider.

 

 

 

 

18.          Thirdly, and most importantly, I am seriously concerned about the discrepancies between what some of these background documents show and what was said in the evidence to the court, particularly in the first witness statement of Ms Jones, which was the basis of the without notice order. This case commenced with an application for an injunction without notice. It continued through a series of interim injunctions where the judges necessarily had very limited time to examine background documents, even if they had been exhibited, which in key instances they were not. It is trite law that when a without notice injunction is applied for there is a duty of full and frank disclosure and there is in any event a duty on any claimant not to mislead the court. This is just as true in proceedings like this as in the Commercial Court or Queen’s Bench. Indeed it is relevant, and I will return to this below, that the injunction sought was not just draconian it was deeply intrusive into the private lives of two adults with capacity. I will refer below to the European and domestic caselaw on the importance of the State not interfering into individuals’ marriage. In those circumstances the obligation for full and frank disclosure is as important if not more important, than in any other form of litigation. I appreciate local authorities are hard pressed, and poorly resourced, however the importance of ensuring the Court is possession of all the relevant facts at a without notice injunction application cannot be overstated.

 

 

 

19.          The starkest example of the failure of the evidence presented to court to properly reflect the true factual position is as follows. In her first witness statement dated 20 March 2019, filed to support the without notice application, at para 12 Ms Jones said;

 

 

 

 

“A new care agency started to work with KR three times a day 9:00. 12:00 and 17:00 and this has worked well intermittently. This is the first agency that has been able to persist with the situation and from 3-week period of recent records ST allowed the carers in on average 3 calls a week out of a potential 39 recorded calls see exhibit DL5. The carers go to each visit and if ST shouts and turns them away they go to the window and check on KR, they report that he may wave from his bed and they then leave and return for the next visit. When asked, KR states that he wants the carers to continue and that he wants to go out with his carers when the hoist is fitted.”

 

20.          This is a paragraph that would cause any judge deep concern about the safety of a seriously disabled man who was on the face of the evidence being isolated from his carers on a very large number of occasions. Surprisingly, the bundle I was given did not actually contain the exhibits to the witness statements, but I was handed DL5 in court. That was a note which was produced at a meeting that Ms Jones had had with the manager of CSL. What this note made clear was that twice every week CSL had produced no information about the number of visits, and whether ST had prevented access or not. This immediately undermined the evidence referred to above that on average ST had only let in the carers three times each week. There were 6 wholly unaccounted for visits, where there was no evidence that ST had refused access. Ms Jones could not explain why there were two unaccounted for days. Further on close scrutiny during cross examination it became clear that the average of access only being allowed three times a week was not even sustainable on the days on which there was information.

 

 

 

21.          There was also a paragraph in Ms Jones’ first witness statement which said that the MARAC professionals meeting had agreed that there was a “very real risk of accidental fatality”. However, when the minutes of the meeting were examined in Court (after the disclosure referred to above), they did not support this sentence.

 

 

 

22.          I am sure that Ms Jones was not seeking to mislead anyone, but there was a lack of attention to the background documents, and a failure to present the full picture which is very concerning

 

 

I’ve drafted my views about the beginning of paragraph 22 about 8 times, and can’t find a safe way of expressing what I think. So I’ll say nowt.