FOURTH SECTION
DECISION
Application no. 39598/09
by Ashok JAIN and Nisha JAIN
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 9 March 2010 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 10 July 2009,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
PROCEDURE
The applicants, Mr Ashok Jain and Mrs Aisha Jain, are British nationals who were born in 1957 and 1963 respectively and live in Amersham. They were represented before the Court by Mr Q. Khanzada of Barker Gillette LLP Solicitors, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign & Commonwealth Office.
The applicants complained of a violation of Article 1 of Protocol No. 1 to the Convention; of Article 13 of the Convention read together with Article 1 of Protocol No. 1; and of Article 6 § 1 of the Convention. On 11 September 2009 the Acting President of the Fourth Section decided to communicate the complaints to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
FACTS
The applicants were the proprietors of a Registered Nursing Home. The local health authority had concerns about the safety of the home for its elderly residents and brought an ex parte application under section 30 of the Registered Homes Act 1984 for an order cancelling the Certificate of Registration. The application was successful and the applicants' Certificate of Registration was cancelled with immediate effect. The applicants appeal to the Registered Homes Tribunal was not heard for four months, by which time irrevocable damage had been done to the applicants' business. They were unable to keep up their payments to the bank as they had no income and as a result the bank foreclosed on the mortgage on the nursing home and on the applicants' matrimonial home. Both properties were sold at forced sale value. The Tribunal allowed the appeal and directed that the section 30 order should cease to have effect.
The applicants brought a civil claim for damages against the local health authority. The High Court held that the local health authority owed the applicants a duty of care as there was a sufficient degree of proximity between the parties; it was plainly foreseeable that if the registration was cancelled and the home closed there would be immediate loss of income and a diminution in the value of the premises; and that it would be fair, just and reasonable to impose a duty of care.
The Court of Appeal allowed the local authority's appeal against this decision, finding that the authority did not owe a duty of care to the applicants. The Court of Appeal relied heavily on the opinion of the House of Lords in D v East Berkshire Community NHS Trust [2005] 2 AC 373, which held that a local authority investigating possible child abuse did not owe a duty of care to the parents of the children under investigation.
The applicants appealed to the House of Lords, which unanimously held that the local authority did not owe a duty of care when applying for an ex parte order in a case such as the present first, because the purpose of the statutory power was to protect the interests of the residents of a nursing home, which were potentially in conflict with the interests of the proprietors; secondly, because no duty of care is generally owed to an opposing party in litigation and the particular circumstances of the present case were not sufficient to make it fair, just and reasonable to impose a duty of care.
COMPLAINTS
The applicants complained that the cancellation of the Certificate of Registration violated their rights under Article 1 of Protocol No. 1 of the Convention. They further complained under Article 13 of the Convention that no effective remedy was available from the domestic courts for the breach of Article 1 of Protocol No. 1. Finally, the applicants complained that the ex parte nature of the application for a section 30 Order violated their rights under Article 6 of the Convention.
THE LAW
On 12 February 2010 the Court received friendly settlement declarations signed by the parties under which the applicants agreed to waive any further claims against the United Kingdom in respect of the facts giving rise to this application against an undertaking by the Government first, to pay the applicants GBP 733,500 to cover any pecuniary and non-pecuniary damage as well as costs and expenses; and secondly, to pay East Midlands Strategic Health Authority GBP 120,926.25 in respect of its legal costs, which formed a part of the losses claimed by the applicants. The sum payable to the applicants will be payable within one month from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said one-month period, the Government undertook to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy