Court of Appeal
Published November 30, 2007
Jain and Another v Trent Strategic Health Authority
Before Lady Justice Arden, Lord Justice Jacob and Lord Justice Wilson
Judgment November 22, 2007

The risk of harm to the residents of registered homes outweighed the economic interests of the registered home proprietor.

The Court of Appeal so stated allowing the appeal of Trent Strategic Health Authority from Sir Douglas Brown ([2006] EWHC 3019 (QB)) who had held that the authority owed a duty of care to the claimants, Ashok Jain and Nisha Jain, to give advance notice in respect of its application for a court order to cancel the registration of their nursing home and to close it.

Mr Colin McCaul, QC, for Trent; Mr Augustus Ullstein, QC, for the claimants.

LADY JUSTICE ARDEN said the case fell within the broad category in which public authorities had powers and duties to protect a class of persons, and, in the course of exercising those powers, cause loss to third parties. The clear object of the Registered Homes Act 1984, reenacted by the Care Standard Act 2000, was to protect infirm residents of nursing homes. There was nothing to indicate that the purpose of the registration provisions was to protect the economic interests of registered persons.

Section 30 of the 1984 Act provided a means of cancelling the registration of a registered person, without the basic requirement that he should be heard before that happened, where there was a serious risk of harm to the residents. That risk of harm took precedence over the proprietor’s interest.

So weighty were the interests of the residents that Parliament had in effect restricted the options available to the registered proprietor to obtain interim relief in respect of an application granted without notice.

He had neither the right to have the order discharged nor the right to a rehearing with both parties present except if he appealed and then not until the appeal came on for hearing. The 1984 Act did not give either the magistrate or the Registered Homes Tribunal the power to grant interim remedies.

The only way in which a registered proprietor could obtain a stay on an interim basis was to apply for a judicial review of the health authority’s decision to make an application under section 30.

That meant, of course, that the registered proprietor would have to show that he had a case on public law principles, for example, that the decision of the health authority was perverse. That was a higher burden than he would have to meet on an appeal.

But that appeared to be a deliberate feature of the statutory scheme. There was a good reason to prevent a party from obtaining interim remedies in a situation involving the closure of the home with infirm residents.

The same considerations applied to the claimants’ rights not to be deprived of property under article 1 of Protocol No 1 to the European Convention on Human Rights.

Lord Justice Jacob delivered a dissenting judgment and Lord Justice Wilson delivered a judgment concurring with Lady Justice Arden.

Solicitors: Evershed LLP; Barker Gillett LLP.

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