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Sowing Promises, Reaping Nothing: The Fall of a £43m Farm Claim

On 29 October 2025, the High Court released Mr Justice Richards’ judgment in the high-value case of Scott v Scott and Others [2025] EWHC 2796 (Ch), a matter which has caught  the newspaper headlines, and concerns a £43 million estate.    Background  The deceased, Richard Norman Scott (the so-called “Car Boot King”), was a farmer, who fathered at least 19 children from multiple relationships. Of these children, Adam Clive Scott (the Claimant) spent most of his life working hard on the farm. Adam was Richard’s second eldest child from his first marriage to Janet, with whom he had five other children. Adam brought a claim in proprietary estoppel to give effect to promises that he alleged his father had made to him, regarding his interest in the farm. Jennifer is one of the Defendants, Richard’s widow, and the mother of seven of Richard’s children.  Adam brought three separate claims, all of which were dismissed. These were in relation to: propriety estoppel, probate, and sham tenancies. I deal solely with the proprietary estoppel claim.  Judgment  Early in the judgment, the Judge provided a detailed consideration of the witness’ reliability based upon their behaviour during the course of the trial. The Judge proceeded to continually refer to these findings throughout his judgment, and the weight attributed to the credibility of the evidence was, in some respects, determinative. This highlights the importance of reliable and credible witnesses and illustrates the weight that is given to the witness evidence of seemingly honest witnesses.  For a claim in proprietary estoppel to succeed, Adam was required to prove that first, there were representation/assurances/promises made by Richard to Adam. Second, Adam had reasonably relied upon them. Third, Adam had suffered a detriment, as a result of his reliance. Quoting Robert Walker LJ in Gillett v Holt [2001] Ch 210 at 225, the Judge pointed out that these ingredients are not “watertight compartments”, meaning that a finding on the first element will often inform findings on the others. The quality of a promise for example, could impact the extent to which the promisee relied upon it. Even if all three elements are present, it is not necessary that the court will provide a remedy. The outcome will be one that will “shock the conscience of the court”, for there to be a remedy [189].  Adam’s case was that Richard had promised him that the farm would be his, in reasonable reliance of which, Adam continued to work hard on the farm. The detriment which Adam claims to have suffered is that he had given a “whole-life” commitment to the farm, working long-hours for low remuneration, at the expense of his personal and family relationships.  One of the representations on which Adam relied, was a promise made by his father in 1985, which was to “set [Adam] up in farming”. Another representation was a testamentary disposition in a 1995 will. The Judge found that the former promise was not related to Adam’s ownership of land, but rather, it was related to farming opportunities. The latter promise had since been withdrawn. This conclusion was reached in light of:  <ol style="list-style-type:lower-alpha" class="wp-block-list"> <li>The context in which the promise was made – Regarding the first promise, Richard had just been released from prison. During his imprisonment, Adam had taken a leading role on the farm, and was therefore aggrieved when upon his father’s return, Adam was treated like just another worker. If Richard had responded to this grievance by promising Adam the farm after Richard’s death, this would not have addressed the problem. Adam was looking for current opportunities, which the promise was referring to. Indeed, Richard honoured this promise [100] – [109].</li>  <li>Evidence of testamentary intention – Richard had written multiple wills throughout his lifetime. Wills written in 2003 and 2007 were not legally valid, owing to the absence of formalities. Nevertheless, these wills demonstrated that Richard was apportioning his wealth between all of his children and aiming to balance competing interests, thereby evidencing a change of testamentary intention from the 1995 will. Importantly, the Judge found that Adam was aware of these wills, and Richard’s changing intentions, thereby preventing the Judge from finding that Adam had relied on any previous inconsistent promises [122] – [127].</li>  <li>The deceased’s character and relationships – Had Richard promised to leave the entire farm to Adam, this would have been to the detriment of his other children. The Judge found that this was unlikely, given that Richard had shown a constant preoccupation throughout his life, of reconciling the competing interests of his many children [105(111)], even though he was not always fair or balanced.</li> </ol>  When considering whether Adam had relied on the promises, the Judge applied the standard set out by Robert Walker LJ’s judgment in Gillett v Holt [2000] EWCA Civ 66, that it is necessary only to establish a “sufficient causal link”. On this approach, even if Adam would have acted as he did, due to for example, his love of farming, then the necessary reliance will not be present [195] – [199]. The promises must be “an” inducement, at least. However, promises can only be relied on after they have been made. Notwithstanding this, the Judge highlighted that Adam’s conduct in working on the Farm in his childhood, and before the promises were made, may still be relevant because the elements are not “watertight”. Consequently, that conduct may shed light on the meaning and quality of the promises, demonstrating that proprietary estoppel involves an almost circular evaluation.  Given the above, the Judge concluded that Adam had reasonably relied on Richard’s promise in 1995, but ceased to rely in 2003, when he was made aware of the 2003 will. Considering only this period of around eight years, the Judge proceeded to weigh the detriment that Adam suffered with the benefits that he received from this reliance, concluding that Adam had not suffered a net detriment. In doing so, the Judge applied the approach as put by Newey LJ at [40] of Winter v Winter [2024] WTLR 1559, which follows that the “Court must weigh any non-financial disadvantage against any financial benefit, even where the disadvantage is not susceptible to quantification”. This exercise must therefore be undertaken even if it is difficult to attribute a financial value to some of the detriment incurred (such as the positioning of one’s life on a farm).  As a result, the proprietary estoppel claim failed.  Commentary  This judgment is an illustration of the importance of context, evidence of testamentary intention, and the deceased’s personality and relationships, in determining a proprietary estoppel claim. The Judge analysed each alleged representation against not only the contextual background in which they were made, but also the likelihood of the deceased having actually made such a promise, given the promisor’s personality. Therefore, evidence pertaining to the promisor’s nature and relationships with the interested parties may be crucial to the eventual outcome of a case. Moreover, even though wills which were subsequent to a binding promise were invalid due to formalities, their evidential weight was substantial. This case also highlights that the detriment of committing one’s whole life to a farm should be weighed up against benefits. The Judge should delve further into a costs-benefits analysis to determine whether the claimant has suffered a ‘net detriment’ or in other words, suffered more than he gained, whether or not some forms of detriment are financially quantifiable.

Re D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362

Re D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362  Background  At the conclusion of an IRH which disposed of public law proceedings a short judgment was delivered by HHJ Chaudhuri granting a care order under section 31 of the Children Act 1989 and a placement order under section 21 of the Adoption and Children Act 2002. Whilst the Local Authority and the Children’s Guardian were present and represented in those proceedings, the parents were not. The parents’ absence was a theme which persisted throughout the case management hearings leading to the IRH.  The Issues  The parents appealed against these orders and permission was granted on two grounds:  <ol style="list-style-type:lower-roman" class="wp-block-list"> <li>Insufficiency of threshold findings under section 31 CA 1989</li>  <li>Inadequacy of judicial reasons for the order</li> </ol>  The Court granted the appeal and discharged the care order and placement order. These were substituted with an interim care order and the applications were remitted for urgent case management.  The Court of Appeal’s Reasoning  <ol style="list-style-type:lower-roman" class="wp-block-list"> <li>Ground one: Insufficiency of threshold</li> </ol>  The Court made clear that alleged threshold facts provided by local authorities must be subjected to close scrutiny. The following were particular failings in relation to the content of the threshold documents, and in the judge’s approach to the threshold itself:  “Reports of” allegations  <ul class="wp-block-list"> <li>The threshold contained “reports of” alleged facts rather than established facts. It is for local authorities to prove the facts which they seek to rely on. Reports do not suffice.</li> </ul>  Linking facts to statutory grounds  <ul class="wp-block-list"> <li>The threshold documents failed to form a link between the facts relied on and the threshold grounds. The threshold should therefore have been rejected on this basis.</li> </ul>  Lack of engagement  <ul class="wp-block-list"> <li>The judge at first instance relied on the lack of engagement of the parents to find that the threshold had been made out. Cobb LJ made clear that the danger in doing so is that this constitutes the “appearance of an administrative act”, particularly if “parents have been ‘deemed’ to accept the threshold facts” [50].</li> </ul>  <ol style="list-style-type:lower-roman" class="wp-block-list"> <li>Ground two: inadequacy of reasons</li> </ol>  The judgment of HHJ Chaudhuri was found to not only have deficiencies, but “there [was] almost no reasoning for the making of the final care and placement orders” [53]. This was problematic for the following reasons.  Absence of clear reasoning  <ul class="wp-block-list"> <li>The need for clear reasoning is even stronger when the effect of an order is draconian. In these situations, “the test for severing the relationship between a parent and a child is rightly strict”, therefore “[j]udges need to explain properly why permanent substitute care is required” [55]. Parties must know the basis upon which an order is made. That basis was not clear in the judgment.</li> </ul>  Welfare Impact  <ul class="wp-block-list"> <li>The question of threshold is inevitably linked to the court’s determination of the question of welfare. A clear evidential basis for finding that threshold is met is therefore necessary to allow a bespoke welfare analysis to follow. Without this, the court will encounter difficulties in evaluating future risk of harm [28].</li> </ul>  Clarification or appeal?  <ul class="wp-block-list"> <li>The Court made clear that where the deficiencies in a judgment are significant, it would not be appropriate for parties to seek clarification rather than appeal. In this case, sufficient reasoning underpinning the decision could not be found even when taking the judgment as a whole. This was not a case in which some gaps needed filling in. Rather, Cobb LJ made clear that “in this case, and on this judgment, I would find myself having “to do the entire puzzle itself”.” [54]</li> </ul>  Standard Form Orders  <ul class="wp-block-list"> <li>The Court also addressed what it found to be troubling provisions in a modified version of the Standard Form Orders found at [148] of the ‘Precedent Library of Public Law Case Management Directions and Orders’ in the Standard Form Orders Volume 2 (Order 8.0: May 2024), namely:</li> </ul>  “[148] If [name] fails to comply with paragraph [para number of parent’s response direction] of this order they shall be deemed to accept the threshold allegations made by the local authority”  <ul class="wp-block-list"> <li>This creates a risk of (i) reversing the burden of proof so that parents have to show hy threshold was in fact not satisfied; and (ii) then “the determination of threshold becomes more of an administrative than a judicial act” [57].</li>  <li>Cobb LJ set out that a more appropriate form of words would be:</li> </ul>  “If the parents fail to respond [to the schedule of findings in support of the threshold criteria], the court may proceed to consider [at the next hearing / at the IRH / at the final hearing] whether the section 31(2) Children Act 1989 threshold criteria are established by reference to the written evidence filed by the local authority.” [58]  Practical Takeaways  1) Avoid reliance on “reports of allegations”  It is for local authorities to prove the facts that they rely on. Clear evidence is needed to establish the significance attributed to those facts. Mere reports are not clear evidence.  2) Ensure threshold documents contain proven facts linked to statutory criteria  Local authorities must be mindful when drafting threshold documents that such documents must demonstrate how the facts relied on justify the conclusion that the relevant child is suffering, or is likely to suffer, significant harm.  3) Do not assume non-response equals acceptance  Threshold findings need to be made even if a hearing is uncontested. The absence of parties and their resultant ‘deemed’ acceptance is not sufficient for threshold to be met. It is for local authorities to prove their case. Intransigence does not reverse this burden.  4) Judicial duty to give reasons – especially where orders are draconian and parties are absent  It is integral in every case that the parties know the basis of any order which is made. Judges must set out with clarity the reasons underpinning their decisions – “justice must not only be done but seen to be done” [47].  5)  Consider the implications for IRHs being used as final hearings  In light of the guidance provided in Re H (Final Care Orders at IRH) [2025] EWCA Civ 1342, which was recognised by Cobb LJ at [8], consideration should be given as to whether it would be appropriate to conclude proceedings at an IRH or whether case management directions should be given to advance towards a more focused final hearing. This is even more so the case so where an IRH is effectively uncontested.

How to Place Children Abroad After Re M

The Court of Appeal’s decision in Re M (A Child) (Placement Order) [2025] EWCA Civ 214 is a cautionary tale about how even well-intentioned attempts to secure a family placement abroad can unravel when delay and uncertainty dominate proceedings. The judgment, and those which have followed citing Re M, expose recurring procedural and strategic pitfalls in how practitioners, local authorities, and guardians approach international family placements and show that Re M is a clear precedent capable of being relied upon to stop late or fanciful plans for international placements.  For those acting in public law cases, Re M is not a rejection of international kinship care, rather it is a simple warning that such placements can only succeed when planned, evidenced, and actioned early. Put simply, delay will be the enemy of such placements.  Background  In Re M, a child born during ongoing care proceedings was just 18 months old by the time his own case reached final hearing. A CFAB assessment of the aunt and uncle in Pakistan was broadly positive, but uncertainties remained. The Local Authority, having initially supported the placement, withdrew that support before the final hearing, citing timescales and unresolved issues about feasibility.  By that stage, the proceedings had already run for a year and a half. The court declined to adjourn for further assessment, holding that a six-to-twelve-month delay would be wholly incompatible with the child’s welfare timetable. The Court of Appeal upheld that decision, with King LJ emphasising that professionals had allowed optimism to override realism the case should have been recognised as unviable much earlier, the Court noting at [66] that:  “What made it difficult was that the hopes of the family, and particularly the aunt and uncle, had been raised and then maintained long after a decision should have been reached that, for many reasons in addition to delay, the aspiration to place M with his extended family in Pakistan was not achievable within his timescales and that M’s best interests could only be served by the making of a placement order with a view to his being adopted in the UK.”  Post-Re M, the courts have made clear that delay, not the geography, is a decisive issue in international placements. The judgment draws upon Re S (A Child) [2015] 1 WLR 925 and Re S-L (Children) [2019] EWCA Civ 1571, reaffirming that extensions beyond 26 weeks are permissible only where necessary for justice, and even weeks, let alone months, are significant for a baby or young child.  The cases which have followed Re M emphasise this point:  <ul class="wp-block-list"> <li>In London Borough of Barnet v DI [2025] EWFC 168, Mr Justice MacDonald criticised the Guardian’s late support for an international placement, citing a lack of timetable, lack of contingency, and lack of understanding about how the move would look. The court cited Re M as follows: “All this demonstrates, as the Court of Appeal recently observed in M (A Child) (Placement Order) [2025] EWCA Civ 214 that there are very considerable disadvantages to commencing an uncertain and potentially protracted assessment process in proceedings that have already been in train for over a year.”</li> </ul>  <ul class="wp-block-list"> <li>In Leeds CC v The Mother and Another [2025] EWFC 202, a case which was almost three years old at the time of conclusion, addressed the issues of delay and, again citing Re M, the Court held that: “A similar example is found in Re M (A Child) (Placement Order) [2025] EWCA Civ, in which the Court of Appeal upheld the decision of the court at first instance effectively to abandon efforts to assess family members of the subject child in Pakistan in circumstances in which many months had already been spent trying to achieve a robust assessment but that, on any realistic view, real obstacles and a significant further delay remained.”</li> </ul>  <ul class="wp-block-list"> <li>And, in Re W (A Child) (Finalisation at IRH) [2025] EWFC 266 (B), the court confirmed that, while fairness demands the opportunity to explore family options, it does not demand indefinite patience in the face of uncertainty.</li> </ul>  These judgments illustrate that delay has become a fault line upon which international placement cases will succeed or fail.  ‘Right’ to a Family Placement  A recurring issue in these cases is the mischaracterisation of family placement as a right. In Re W (A Child) (Adoption: Grandparents’ Competing Claim) [2016] EWCA Civ 793, the Court of Appeal firmly rejected the notion that a child holds a right, or that there exists a presumption, to be raised by their birth family. The only “right” is for decisions about their upbringing to be made with their welfare as the paramount consideration, in a manner that is proportionate and compatible with their rights.  This does not, however, negate the strong welfare principle that children’s best interests do often include being raised within their natural family (a principle which must logically exist given the emphasis on family and connected carer viabilities and assessments). The difficulty is one of balance, a viable family placement must be realistic and timely. There must be caution against sentimental reliance on biological connection at the expense of a child’s welfare timescales, a tension which Re M grappled with.  Re M and its aftermath demonstrate that the question of international placements is one of whether they are workable within the child’s timescales. The following may prove useful things to consider with these types of cases.  Re M and its aftermath demonstrate that the central question is not whether international placements are desirable, but whether they are workable within the child’s timescales.  Practical Takeaways  1 – Identify International Carers Early  Parents must be advised from the outset to disclose all potential family carers, even if located abroad. Late identification is now the single most common cause of failure in international placement cases.  2 – Treat Viability as a Process  The existence of a willing relative abroad is not enough. Practitioners should ensure that viability assessments, CFAB referrals, and liaison with Central Authorities begin immediately once a carer is identified and not at a point where the prospects of reunification are faltering away.  Where a CFAB assessment raises uncertainties, those issues must be addressed quickly.  3 – Manage Timescales Transparently  Courts are less concerned with whether an international placement will exceed 26 weeks generally, more so the concern comes around the timeliness of raising the placement and the information around this.  At week two, an honest projection of a 50-week process may still be consistent with the child’s welfare. At week 34, speculation about a possible overseas carer is unlikely to be.  4 – Obtain Specialist Advice Early  International placements can engage several legal frameworks, including the 1993 or 1996 Hague Conventions (depending on the type of placement), domestic adoption law, and immigration law. Local Authorities who are embarking on international placements and exploring the same must obtain swift advice on such placements, including advice from the proposed placement country. Once received, such advice must be implemented without any delay.  5 – Plan for Contingency  Courts are increasingly critical where international options are advanced without a fallback plan, thankfully, however, courts are very used to double or triple tracking cases. Such contingency proposals must be part of the process of an international placement, this is not to suggest the placement will fail, but to show what the plan is should it.  6 – Know When to Stop  “Enough is enough” moments must be recognised. Where assessments remain uncertain or logistically implausible after months of delay, the child’s welfare timescales will take priority and there has to come a point where the nettle is grasped, and the plan abandoned. In short, Local Authorities cannot get sucked in with a gamblers fallacy to just keep going.  Conclusion  It bears repeating that Re M does not prohibit international placements, and it should not be allowed to be used as an authority by Local Authorities to dismiss early and realistic proposals for such placements. Rather, it highlights proportionality and discipline to how they are pursued. The law continues to recognise the value of children growing up within their family, culture, and community, notwithstanding the courts reigniting the principle that there is no right to a family placement, but that aspiration cannot come at the expense of permanence or stability.  When properly managed from day one, cross-border placements remain both possible and desirable. The challenge for practitioners is ensuring that the planning and progress of these placements meets the nebulous concept of the child’s timescales.  Avaia is a specialist children and Court of Protection barrister at Parklane Plowden Chambers.

Howard Elgot and Abigail Telford succeed in E.Coli 157 and Critical Illness Brain Damage Claims

DXC v South Tees Hospitals NHS Trust and Newcastle-Upon-Tyne Hospitals NHS Foundation Trust - 24th October 2025  On 24th October 2025 the High Court in London approved a settlement at 90% of the full value of her claims in favour of a child who had contracted E. Coli 157 in 2011 during an outbreak at the Playdays Nursery, Middlesbrough, owned and operated by the South Tees Hospitals NHS Trust. The claim had been listed for a 12 day High Court Trial with 12 Expert Witnesses and 15 Lay Witnesses. Five children and a nursery nurse became infected. As a result of her infection the Claimant suffered permanent severe brain and renal damage and she has had to undergo a kidney transplant. The claim is likely to be worth several million pounds.  <a href="https://www.parklaneplowden.co.uk/our-barristers/howard-elgot/" target="_blank" rel="noreferrer noopener">Howard Elgot</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/abigail-telford/" target="_blank" rel="noreferrer noopener">Abigail Telford</a> instructed by <a href="https://www.hay-kilner.co.uk/our-people/david-bradshaw/">David Bradshaw</a> of <a href="https://www.hay-kilner.co.uk/">Hay and Kilner</a>, appeared for the successful Claimant.  The name of the Claimant has been anonymised by an order of the High Court to DXC.  Infectious disease claims create novel problems of causation. Few similar cases have succeeded. The only case relatively similar to the instant case, i.e. a case dependent upon showing an avoidable transmission of infectious disease in a workplace or communal setting that has reached the higher courts, is Sanderson v Hull [2009] EWCA Civ 1211, a case involving the campylobacter bacterium infection of a woman working as a turkey plucker. The infection was contracted from an infected turkey. Somewhat surprisingly on the facts of that case, the claimant lost. It is obvious that child to child transmission of E. Coli in a nursery cannot be prevented if the nursery nurses are unaware that one of the children was or might be infected with a diarrhoeal illness. The somewhat simplified summary below demonstrates the difficulties the Claimant faced when bringing her claim.  In the week of the E. Coli outbreak DXC attended the nursery on 3rd and 4th August. On the facts of her case the Claimant had to show that that on a balance of probabilities another child (or nursery nurse) introduced the bacteria into the nursery on a date before 3rd August 2011, that child (or nursery nurse) did not attend the nursery at the same time as DXC, that there was environmental transmission to DXC at the nursery, rather than person to person transmission, and that environmental transmission to DXC would have probably have been prevented had reasonable precautions been taken at the nursery. There was a second part to the Claimant’s claim. DXC was eventually admitted to the Royal Victoria Hospital, Newcastle, but unfortunately her bowel perforated on 26th August. There was an admitted delay in diagnosis, and the surgery that the Claimant urgently required was not caried out until 22.30 on Monday 28th August 2011. On the Claimant’s case there was a delay of 47.5 hours; on the Defendant’s case there was a delay of 33.5 hours. Up to the meeting of the paediatric neurologists the Newcastle Trust denied that either period of delay made any difference to the Claimant’s brain or renal injuries, but the experts agreed that the severe systemic illness with sepsis (also termed critical illness) suffered by the Claimant after her bowel had perforated made a material contribution to the extent of the brain damage suffered by the Claimant, and that even the shorter delay admitted by the Defendant was sufficient to make a further material contribution. Thus in relation to the brain injury suffered by the Claimant, but not in relation to her renal injuries, she was able to rely upon the principle in Williams v Bermuda Hospitals Board 2016 AC 888 that where on the balance of probabilities an injury had been caused by two or more factors operating cumulatively, one or more of which was in breach of duty, the Claimant will succeed in full unless the injury can be categorised as a divisible injury.

When is an inquest an “article 2” inquest?

This article summarises the decision in <a href="https://www.bailii.org/ew/cases/EWHC/Admin/2025/1901.html">R (Ferguson) v HM Assistant Coroner for Sefton, Knowlsey and St Helens [2025] EWHC 1901 (Admin)</a>. Mr Ferguson’s brother, Joseph Farley, died after jumping from the fourteenth floor of a car park, shortly after speaking with police who attended via emergency response to check on him following concerns from a member of the public. Mr Ferguson challenged the Coroner’s decisions that (i) the enhanced investigative duty under Article 2 of the European Convention on Human Rights was not engaged; and (ii) the inquest would be heard without a jury because section 7(2)(b) of the Coroners and Justice Act 2009 ("the CJA") did not apply. This article will not recite the entire facts of the case but will provide a short summary on some of the key points from Mrs Justice Hill’s decision.  Article 2 – the duties  The duties imposed on the state by Article 2 include both a positive duty to protect life and a separate investigative duty to inquire into and explain the circumstances of a death. The former positive duty contains two aspects; the positive operational duty and the framework duty (often referred to as the systems duty). Within the investigative duty, the enhanced investigative duty (in other words when there should be an Article 2 inquest) applies when there is a sufficiently arguable breach by the state of one of its substantive obligations (the positive duty). The inquest should answer the question “in what circumstances the deceased came by his or her death” in order to comply with the duty.  What needs to be “arguable”?  The first issue in Ferguson was about whether there is a positive operational duty and what the threshold is for answering that question. It was agreed between parties that the threshold for whether there is any breach of the duty was a low arguability threshold. The Chief Constable’s position was that there is a high threshold to establishing the existence of the positive duty (before the low threshold of arguable breach of said duty is considered). Mrs Justice Hill held that the Claimant was right to contend that it was a low threshold. At §128: “I observe that the rationale for the low arguability threshold described in Morahan at [75] and [102], namely the concern to avoid the risk of a Coroner determining what the outcome of any inquest might be without the full evidential picture, applies with equal force to the duty issue and the breach issue, when either is considered before the evidence has been heard. This explains why the threshold is the same for both the duty issue and the breach issue.”. The question is therefore whether an arguable duty has been arguably breached.  Mrs Justice Hill found in the affirmative on both questions in the material case: there was an arguable duty, and it had been arguably breached. The discussion of the issues within the judgment is a clear analysis of the features relevant to the decision (both for- and against-) and is worthwhile reading for those who are considering these issues in their own cases.  A notable part of the discussion is the question about whether the State had arguably assumed responsibility for Mr Farley when the police attended upon him. Mrs Justice Hill considered there was force in the Claimant’s argument that reference to common law cases is appropriate when considering assumption of responsibility [§175 onwards]. Hill J considered precedent in tort law including circumstances where emergency services can assume responsibility for a person’s care where they give an assurance on which that person relies. The Judge also confirmed that consideration must be given to what the officers should have done, in addition to what they did do. Overall, it was arguable that the State had assumed responsibility for Mr Farley and there was an arguable breach of duty. In relation to the latter, Mr Farley’s vulnerability was a relevant factor and death by suicide is “by definition, an "exceptional" rather than "ordinary" risk”.  When is a jury mandatory?  An inquest must be held with a jury for a number of reasons, but particularly relevant to this case is if the Coroner has reason to suspect that the death resulted from an act or omission of a police officer. The Coroner declined to empanel a mandatory jury because he said, “The phrase: "act or omission" should be interpreted as there being a requirement for some form of inappropriate act.”. Mrs Justice Hill was not aware of any authority “supporting the placing of such a gloss on the statutory wording”.  Hill J also considered the phrase “reason to suspect” and confirmed this also has a low threshold. Her earlier conclusions on the substantive Article 2 grounds led to the conclusion that “the totality of the evidence met the low, objective threshold of "reason to suspect" Mr Farley's death resulted from the acts and omissions of the officers who attended the scene”. The only “rational conclusion” on the facts was that the reason to suspect test was met. A jury ought to be empanelled.  Comment  We all turn to articles and commentary hoping for an ‘easy read’ or the key points to be distilled in a simple fashion. However, I regret to inform my readers that my comment to you all is that there is no substitute for reading the judgment of Mrs Justice Hill. It is a comprehensive and well written judgment which I cannot emulate in a short article. All I can hope to do is bring the case to your attention and remind you that when considering if an inquest is an “Article 2” inquest, a review of this judgment is worthwhile. The judgment explains the different Article 2 duties using a composite of the relevant authorities; and further, it demonstrates the type of analysis that Coroner’s ought to be carrying out when considering whether the enhanced investigative duties applies.  It's also worth noting that Mrs Justice Hill “respectfully question[ed] the wisdom of the Coroner” (!) in determining the Article 2 and jury issue on the basis of written submissions alone, without oral submissions. Practitioners should be aware of §101 and the strong guidance that these issues should be dealt with at an oral hearing with prior notice in an agenda.  In short, the question is whether there is an arguable duty that has been arguably breached. The factors for or against will be fact specific but analogy can be drawn from previous case law, including common law negligence cases.  Megan Crowther is part of the Inquests Team at Parklane Plowden. Megan's profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/megan-crowther/">here</a>.

Suspicious deaths of those detained in care homes: what amounts to an arguable breach of the operational duty under Article 2?

Since the availability of non-means tested legal aid for Article 2 inquests, it will be important for those representing bereaved families to identify at an early stage whether an inquest is likely to engage Article 2. Similarly, with the potential for the coroner or jury to return a conclusion that criticises the acts or omissions of interested persons, state bodies need to be aware of the circumstances when an Article 2 inquest might arise. The paradigm examples where it is engaged are suspicious deaths whilst detained in prison or whilst detained in a psychiatric unit under the Mental Health Act 1983. These have been described as cases in which Article 2 will automatically be engaged, and thus an Article 2-compliant inquest is required.  This article explores the jurisprudence to date in relation to deaths in care homes, where residents are similarly deprived of their liberty under the Mental Capacity Act 2005. The focus is on the state’s operational duty, as opposed to the wider systems duty, under Article 2 of the ECHR. In addition to practitioners preparing to represent bereaved families at inquests, this article will be relevant to:  <ul class="wp-block-list"> <li>local authorities exercising their powers to detain people in care homes under the Mental Capacity Act 2005; and</li>  <li>commissioning local authorities and NHS integrated care boards when deciding to place someone in a particular care or nursing home.</li> </ul>  Cases where an Article 2 inquest is required  In R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin), Popplewell LJ conducted a thorough exploration of the domestic and Strasbourg jurisprudence regarding the operational duty under Article 2 and the circumstances in which an Article 2-compliant inquest must be held.  Automatic Categories  There are certain categories of deaths which have been held as automatically engaging Article 2, including:  <ul class="wp-block-list"> <li>killings by state agents;</li>  <li>suicides or attempted suicides and unlawful killings in custody;</li>  <li>suicides of conscripts; and</li>  <li>suicides of involuntary mental health detainees.</li> </ul>  This is not an exhaustive list. Popplewell LJ held that the touchstone for whether the circumstances of a death are such to give rise to a duty to conduct an Article 2-compliant inquest is “whether they fall into a category which necessarily gives rise, in every case falling within the category, to a legitimate ground to suspect state responsibility by way of a breach of a substantive article 2 obligation” (at [122]).  Accordingly, not all deaths in state detention automatically engage Article 2. For example, in Tyrrell v HM Senior Coroner for County Durham and Darlington [2016] EWHC 1892 (Admin), the High Court held that an Article 2 inquest was not required for a death in prison arising out of natural causes, where there was no evidence of negligence or systemic failings by the prison or medical staff.  To date, there has been no authority that defines a category of deaths in care homes that would automatically trigger an Article 2 inquest.  Arguable breach of a substantive duty For cases that do not fall into one of the “automatic categories”, an Article 2 inquest will still be required if there has nonetheless been an arguable breach of one of the state’s substantive duties under Article 2. As we have been recently reminded in R (Ferguson) v HM Assistant Coroner for Sefton, Knowsley & St Helens [2025] EWHC 1901, the “arguability” threshold is a low one. Hill J cited Popplewell LJ in Morahan as to the reason why the threshold is low: “This threshold is a low one because to impose a more onerous burden would run the risk of the coroner determining, in advance of the full evidential picture, what the outcome of any inquest might be” (at [75]).  As to what would satisfy the test, Popplewell went on to say: “… it must amount to more than mere speculation. There must be a real evidential basis which make the suggestion of a breach of a substantive obligation by the state a credible one” (at [75]). “… different expressions (grounds to suspect, legitimate suspicion, possibility, potential, more than fanciful, credible suggestion) are, in my view, simply alternative ways of expressing a single concept of a single threshold of arguability. It is a concept similar to the domestic test for summary judgment, keeping in mind that in the article 2 investigative duty context the test often falls to be applied at an early stage when the evidence is all in the hands of the state authorities” (at [102]).  Hill J in Ferguson has confirmed that the test applies not only to assessing whether the state might have breached a substantive duty, but also assessing whether the state owed a duty under Article 2 in the first place (at [124]-[130]).  The operational duty, the Rabone 'indicia', and medical cases  The state has an operational duty under Article 2 where the state knows, or ought reasonably to know, of a real and immediate risk to an individual’s life, and it requires it to take such measures as could reasonably be expected of it to avoid such risk (Osman v United Kingdom [1998] 29 EHRR 245 at [115]-[116]).  The Supreme Court in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 considered whether an NHS Trust owed the operational duty to a voluntary psychiatric patient. Melanie Rabone had committed suicide whilst on a visit home, when she was known to the NHS Trust to be a high risk of suicide. The Supreme Court held that the operational duty was owed to take steps to protect the deceased from the suicide risk, and that duty had been breached. Lord Dyson when on to set out the “indicia” from Strasbourg authorities which can point to the existence of the operational duty:  <ol class="wp-block-list"> <li>There is a real and immediate risk to the individual’s life;</li>  <li>There has been an assumption of responsibility by the state for the individual’s welfare and safety, including by the exercise of control (paradigms being where the state has detained an individual, such as in prison or in a psychiatric hospital);</li>  <li>The individual is especially vulnerable by reason of their physical or mental condition (in some cases, where the individual is sufficiently vulnerable, there does need to be an assumption of control by the state); and</li>  <li>There is an exceptional risk to life, beyond an “ordinary” risk of the kind that individuals should be expected to take.</li> </ol>  In Rabone, the deceased was an in-patient of the NHS Trust due to her risk of suicide. She was vulnerable due to her mental state, and the NHS Trust had assumed responsibility for her. Whilst not formally detained, the NHS Trust would have been able to prevent her from leaving the hospital using its powers under the Mental Health Act. In essence, the deceased’s case was effectively the same as that of a detained individual in a psychiatric hospital.  The operational duty in the medical context has been further explored in Strasbourg. In Centre for Legal Resources on behalf of Câmpeanu v Romania [2014] ECHR 789, a young man who had been diagnosed with a severe learning disability and HIV had been under the care of the state throughout his life. He displayed challenging needs, and he was transferred to several placements prior to his death. The deceased was transferred to a specialist medical and social care centre that was not equipped to deal with his mental health needs. It was unable to cope with his challenging behaviour, and he was transferred to a hospital for psychiatric treatment. The hospital, however, was unable to treat those with HIV. The decision to place the deceased at the care centre and latterly the hospital seemed to have been based on their willingness to admit him, rather than their ability to meet his needs. Further, the state was found to be aware of the poor conditions at the hospital, including a lack of heating, adequate food, medical staff, and medications. The risk to life was known because there had been several other deaths at the same hospital in similar circumstances to that of the deceased. Accordingly, the Court found that the operational duty was engaged and had been breached.   In Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28, it was iterated that something more than “mere medical negligence” was required for Article 2 to be engaged. The case concerned a man who died from septicaemia and the alleged failure by his treating clinicians to provide appropriate treatment. Although the Grand Chamber was discussing the systems duty, the two exceptional circumstances when Article 2 would be engaged were framed in a way which appear to draw parallels with the operational duty:  <ol class="wp-block-list"> <li>“where an individual’s life is knowingly put in danger by a denial of access to life-saving emergency treatment… It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment” (at [191]).  </li>  <li>“where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising…” (at [191]).</li> </ol>  It was held that neither of those situations applied to the deceased, and that it was more a case of medical negligence. The court also noted, however, that: “different considerations arise in certain other contexts, in particular with regard to the medical treatment of persons deprived of their liberty or of particularly vulnerable persons under the care of the State, where the State has direct responsibility for the welfare of these individuals” (at [163]).Fernandes de Oliveira (2019) 69 EHRR 8 considered the operational duty in the context of a voluntary in-patient in a psychiatric hospital who committed suicide. As in Rabone, the duty was held to exist. It was noted that the deceased was vulnerable due to his severe mental health problems and that, despite being a voluntary patient, the hospital had the power to exercise control over him over the course of his treatment. However, the Grand Chamber held that the authorities did not know, nor reasonably could have known, that there was a real and immediate risk of suicide. On that basis, the duty had not been breached.  Finally, in Morahan, Popplewell LJ was considering whether the operational duty arose in the context of a voluntary psychiatric in-patient in a community rehabilitation unit, such that an Article 2 inquest was required. Tanya Morahan had paranoid schizophrenia and died from multiple drug toxicity during a period of agreed leave. The deceased had initially been detained under the Mental Health Act, but latterly that had been rescinded, and she remained on the ward voluntarily. She had been allowed to leave the ward previously and had returned, albeit she was late as she had decided upon an impromptu trip to Munich during her leave. It was held that there was no arguable existence nor breach of any operational duty by the state:  <ol class="wp-block-list"> <li>The deceased died because of an accidental overdose. There was no evidence that the NHS Trust was aware, or ought to have been aware, of that risk to her life. There was no history of accidental overdose or suicide attempts, and the deceased had been abstinent from taking drugs.</li>  <li>There was no assumption of responsibility in respect of life-threatening substance misuse. The NHS Trust’s responsibility was in respect of treating her paranoid schizophrenia, which had a history of exacerbation with substance misuse. The treatment had been successful such that detention under the Mental Health Act was no longer required.</li>  <li>She was not especially vulnerable such that it gave rise to the existence of a duty. The case was distinguishable from other cases involving psychiatric patients and a risk of suicide. The deceased’s vulnerability stemmed from her paranoid schizophrenia and, it was held, her risk of accidental overdose was unconnected to that.</li>  <li>Her risk of accidental overdose was no different to that of any recreational drug user. It was therefore not an “exceptional” risk.</li>  <li>Unlike in Rabone, there was no evidence that the NHS Trust had sufficient grounds to detain her if she tried to leave. The level of control was therefore absent.</li> </ol>  From the above, the Rabone indicia continue to be the relevant factors to consider when considering both the existence and breaches of the operational duty by state agencies. It has typically arisen in the context of mental health patients who are at known risk of suicide and are effectively detained. The assumption of responsibility must relate to that known risk, rather than some other risk of death unconnected to the reason for their detention in the first place. Outside of mental health and suicide risk, the duty may be engaged where the state has assumed responsibility for one’s basic healthcare, but knowingly puts the individual’s life at risk by placing them in a setting that is ill-equipped to meet those needs.  Care Homes  The following cases have specifically explored when the operational duty applies in the context of care homes. Similar themes to those from the medical cases arise.  Dodov v Bulgaria (2008) 47 EHRR 41  Mrs Stoyanova, a 63-year-old woman with advanced Alzheimer’s disease, was residing in a nursing home due to her needing constant supervision and care. She was taken to a medical appointment by a staff member but, after leaving her for a few minutes, she had wandered off. She was declared missing and, by the time of the hearing in Strasbourg 11 years later, she still had not been found. The Court assumed that she had died, for the purposes of Article 2. It does not appear to have been argued that the care home owed the deceased an operational duty (presumably because they were not aware of a real an immediate risk to her life, but rather a more general risk of her absconding). It was held that the actions of the care home were comparable to allegations of medical negligence, and the Court focused on the availability of remedies for the same. No violations of Article 2 were found in respect of the care home.  Nencheva v Bulgaria (48609/06, 18 June 2013)  This case concerned 15 children and young adults who had been placed in a specialist care home for those with severe mental disabilities. They had been placed there by the state and required intensive care. They died over the winter of 1996/97 due to being subjected to extremely poor conditions in the care home. This included insufficient food, medicines, and heating. Managers at the care home had notified state officials at the highest levels, but no action was taken for several months. It was held that the operational duty did arise: the state was aware of the real and immediate risk to the lives of these children and young adults. They had failed to promptly intervene to mitigate against that risk.  Dumpe v Latvia (71506/13, 16 October 2018)  AP was a young man with Down’s syndrome and had been placed in a care home by the state. His mother alleged that the staff at the care home, particularly the medical staff, failed to provide adequate care to him. She alleged that he became weaker and lethargic in the months before his death. Three days before his death, the care home called for an ambulance due to the deceased being feeble and unwilling to eat. On admission to hospital, it was noted that the deceased was undernourished, had extensive psoriasis rashes, and was catatonic. During his admission, it was noted that he had hepatitis B, his skin conditions had likely been present for six months, and that he appeared neglected, hypotrophic, and having extreme asthenia. A criminal investigation into his death found that the deceased had died due to cardiac insufficiency, triggered by cardiomyopathy. Whilst some criticism was made of the care home for the delay in seeking medical assistance, a panel of experts had found that it was not possible to say the extent to which this had impacted on the outcome.  The Court held that Article 2 was not engaged. The complaints raised by the deceased’s mother were more akin to allegations of medical negligence. There was no suggestion that the state had unreasonably put the deceased’s life in danger by placing him in the care home (unlike in Câmpeanu and Nencheva). There was no allegation of systemic failings and the care did not fall within the very exceptional circumstances from Lopes de Sousa Fernandes. Accordingly, the complaint was not upheld.  R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde [2023] UKSC 20  Outside of Strasbourg, Maguire considered the care provided to a 52-year-old lady with Down’s syndrome and learning difficulties. Jackie lived in a residential care home and was deprived of her liberty there, pursuant to a standard authorisation granted by the local authority. She died as a result of a perforated gastric ulcer and pneumonia. The family’s criticisms of the care home were that there were signs that the deceased was becoming unwell (she was not eating well, had a sore throat, and had diarrhoea) and they were not promptly acted upon by care staff. In brief, they did not seek medical assistance soon enough. When they eventually contacted her GP, the Deceased had become very unwell. They were (wrongly) advised that a home visit was not needed. The care home then contacted 111 the same day and paramedics attended. They wanted to take the deceased to hospital, but she refused. After consulting an out-of-hours GP, it was decided that the deceased would not be compulsorily taken to hospital. The following day, the deceased’s condition deteriorated, the paramedics attended again and on this occasion she was taken to hospital. She sadly died the same day after suffering cardiac arrest.  The Supreme Court specifically considered whether the operational duty was arguably owed by the care home, citing the Rabone indicia. It held that:  “When an individual is placed in a care home, a nursing home or a hospital the state’s operational duty in the targeted sense derived from Osman… does not involve an assumption of responsibility extending to taking responsibility for all aspects of their physical health, with the consequence that if he or she dies from some medical condition which was not diagnosed and treated in time the state’s duty is engaged and the enhanced procedural obligation in terms of accountability is triggered. Even though the individual may not be at liberty, the state is not for that reason made the guarantor of the adequacy of healthcare provided to them in all respects, with an enhanced obligation to account if things go wrong…” (at [190]).  It was emphasised that a specific risk to life needs to be identified. Whilst it could be argued that the deceased was vulnerable and the state had assumed responsibility for her care generally, it was not until she became very unwell that it could be said that the care home were aware of a real and immediate risk to life. The Supreme Court indicated that, had they taken no steps to seek medical advice at that stage, “that might well have constituted a breach of the article 2 operational duty” (at [204]). The suggestion is, therefore, that if a care home becomes aware that a resident is seriously unwell, the operational duty will be engaged to the extent that they should be seeking medical advice.  Validity Foundation on behalf of TJ v Hungary [2024] ECHR 796  TJ was a woman with a severe learning disability who had been placed in a care home by the state. She lacked capacity to make decisions regarding her health and welfare for herself, and she had been appointed a guardian to make such decisions. She was known to display challenging behaviour and was not allowed to leave the care home.  Prior to her death, the care home in which the deceased resided had been investigated by a team of monitors from the Validity Foundation. It produced a damning report, highlighting instances of unlawful use of restraint, lack of proper heating, malnutrition, and neglect. The Ministry for Human Resources then carried out its own investigation into the care home and corroborated the concerns raised by the Validity Foundation.  It found that the care home was extremely understaffed and that restraint was being used to mitigate the risk of residents, like TJ, from suffering falls and displaying aggressive behaviour. It further found that the care home could not achieve the minimum standard of living conditions. The Hungarian Commissioner for Human Rights also produced a report, which concluded that the care home lacked adequate care facilities and that human rights were being violated.  TJ was taken to hospital in August 2018, where she was diagnosed with bacterial pneumonia. She suddenly deteriorated and died before discharge. The Court agreed with the findings of the Validity Foundation that TJ’s condition had been triggered by long-term neglect at the care home.  The Court cited Nencheva and Câmpeanu in finding that Article 2 was engaged. The state was clearly aware of the appalling conditions in which TJ had been detained, and had not taken adequate protective measures to mitigate against the risk of death. In addition, it held that the state had assumed responsibility for her health and welfare, and TJ was under their exclusive control. She needed constant supervision, was unable to make decisions for herself, and she was not free to leave the care home. The Court held that it was incumbent on the state to account for TJ’s medical treatment and give appropriate explanations regarding the care she received.  Practice points  Although there is no authority that suggests that Article 2 will automatically be engaged when there is a death in a care home, the jurisprudence confirms that there will be circumstances where the operational duty will be engaged.  The Rabone indicia continue to be relevant considerations, and it can be anticipated that they can apply in a care home setting:  <ol class="wp-block-list"> <li>If the care home or the state more generally is aware of a real and immediate risk of death, the duty can be engaged. These could include: <ul class="wp-block-list"> <li>Where the individual is seriously unwell (which should have been apparent to non-medical care staff) and the care home fail to seek medical assistance (Maguire). This would also be comparable to the first exceptional circumstance when Article 2 is engaged in a medical context from Lopes de Sousa Fernandes: a denial of access to emergency life-saving treatment.</li>  <li>Where the state is aware, or ought to have been aware, that the care home was incapable of meeting the individual’s basic care needs, such that their life was at risk (Nencheva, TJ).</li> </ul> </li>  <li>For any resident to be detained in a care home under the Mental Capacity Act 2005, it will be because it is necessary and in their best interests. They must lack capacity to agree to the detention. Such residents are therefore likely to be regarded as vulnerable, by virtue of their physical and/or mental state.</li>  <li>By being so detained, the state will have assumed responsibility for their health and welfare in the general sense. The individual will not be free to leave and are effectively under the state’s control (TJ, Nencheva). However, assuming control over their health and welfare does not trigger a duty under Article 2 necessarily (Maguire). Arguably negligent care will not be sufficient (Dumpe, Dodov) and it should be shown that the state agency was aware (or ought to have been aware) of a specific risk to life (Maguire).</li> </ol>  As in the medical context, it seems likely that it will only be rare that a breach of the operational duty will be found regarding care home deaths. However, for an Article 2 inquest, the court is only concerned with whether it is arguable that there has been. When considering if a death in a care home arguably engages Article 2, the following will be relevant to the coroner’s investigation:  <ul class="wp-block-list"> <li>Is there any evidence to suggest that the care home resident was seriously unwell and care staff failed to seek any medical attention? Applying the obiter comments in Maguire, this would suggest an arguable breach.</li>  <li>Is there any evidence that the state agency knew or ought to have known that the care home was not safe to meet the individual’s basic needs? For example, is there a damning CQC report? Have there been any safeguarding investigations conducted by the local authority? Was there a deterioration in the individual’s overall condition that would not be attributable to their age or a health condition that led to their placement in a care home? If the individual was placed in the care home despite there being serious concerns about its ability to meet their basic needs, it would be arguable that Article 2 is engaged (Nencheva, TJ).</li> </ul>  Tom is a member of the inquests team and is recognised by the Legal 500 and Chambers & Partners as a leading practitioner in this field. His practice is complimented by his experience in clinical negligence, Court of Protection, and community care. He has represented various interested persons in inquests, including bereaved families, local authorities, NHS Trusts, individual practitioners, and insurers. He regularly appears in Article 2 inquests and those sitting with a jury. His full profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/tom-barclay-semple/">here</a>.

Neurodiversity and the Family Courts – new guidance seeks to bridge the gap. Will it work? A view from the bar – [2025] Fam Law 1021

Chambers is again excited to share that barrister, Chloe Branton, and pupil Avaia Williams have recently been published in Family Law Journal, sharing their analysis and thoughts on the Family Justice Council neurodiversity guidance.  In their article, Chloe and Avaia reflect on the guidance and how it will play out in the Family Justice System, and how it is already playing out. Chloe and Avaia are regularly instructed in matters acting for neurodiverse parties and share their top tips for ensuring the guidance is more than just a soundbite, including exploring:  <ul class="wp-block-list"> <li>why recognising neurodiverse needs is essential to fair access to justice;</li>  <li>the risks of flawed assessments where neurodivergence is overlooked;</li>  <li>the practical recommendations offered by the guidance, including the use of frameworks such as SPELL; and</li>  <li>the need for consistent adoption across the system, from judges to practitioners to court staff.</li> </ul>  Drawing on both professional and personal experience of working with neurodiverse clients and witnesses, they highlight how relatively simple adjustments can make a profound difference to participation and outcomes.  Understanding neurodivergence is not an optional courtesy but a fundamental requirement of fairness in family proceedings. The promises of the new guidance depend on meaningful and systemic change, and consistent implementation.  The full article is available in the August issue of Family Law, for those with subscriptions this can be found on Lexis Nexis.

Trial Success for Howard Elgot and Megan Crowther: HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

<a href="https://www.parklaneplowden.co.uk/our-barristers/howard-elgot/">Howard Elgot</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/megan-crowther/">Megan Crowther</a> of Parklane Plowden Chambers, instructed by David Bradshaw of <a href="https://www.hay-kilner.co.uk/">Hay & Kilner LLP</a>, acted for the Claimant in her claim against the Newcastle-Upon-Tyne Hospitals NHS Foundation Trust, in a 5-day High Court trial at the Royal Courts of Justice, in June. The trial was to determine breach of duty and causation. Liability had been strongly contested by the Trust; but the Claimant succeeded on issues of (1) informed consent; (2) breach of duty by the surgeon in the planning of the operation; and also (3) in establishing that 13 minutes of cerebral hypoxia would have been avoided had the operation been planned appropriately. The matter will proceed to an assessment of damages hearing in due course.  The claim was brought after the Claimant, who can be referred to only as HQA because of an anonymity order made by the High Court, suffered severe brain damage after undergoing open heart surgery at the Freeman Hospital, Newcastle. The Claimant had suffered congenital heart problems from birth and had undergone many operations and other procedures over her lifetime. In order to gain access to her heart, the surgeon used an oscillating saw. The saw slipped, and instead of the saw cutting through only the anterior section of the Claimant’s sternum, the saw went fully through the sternum and into her aorta, causing catastrophic bleeding  which led to the cutting off of the blood supply to her brain. It then took so long for the surgeons to put the Claimant on cardio-pulmonary bypass that she suffered very severe hypoxic brain damage. The time was prolonged in part because another surgeon, who had been called in because of the emergency, attempted to cannulate one femoral artery, but the artery dissected, and another femoral artery had to be prepared and cannulated. Following the operation, HQA’s family were told to expect the worst, but the Claimant has at least made a partial recovery.  The Court held that the Defendant failed to obtain the Claimant’s informed consent for her surgery and further, that the surgeons failed to plan adequately for the possibility of the catastrophic event that occurred.  The Court accepted the general thrust of the Claimant’s expert’s evidence that the Claimant’s aorta was sufficiently close to the rear of her sternum, at least in places, to mean that no surgeon could be confident, in a re-do sternotomy, of being able to open the sternum without causing injury to the enlarged aorta. As a result, the minimum level of precaution required was to expose and prepare the relevant groin vessels as a preparatory step, in case emergency bypass was required. The Defendant failed to take this step. The Court held that more than half of the time taken to establish cardiopulmonary bypass would have been saved, but for the negligence. As a result, the Claimant sustained a prolonged period of hypoxia.  Furthermore, the Court found that the above mitigating steps should have been discussed with the Claimant during the consenting process: “It is not for the surgeon to determine, for the Claimant, what the Claimant’s risk appetite should be”. It was also held that in this case, it was “unacceptable practice” for the surgeon to see the patient for the first time on the day of the intended surgery in order to explain the risks of the operation for the purposes of seeking to obtain informed consent. The Court agreed with the Claimant’s expert’s view that the consenting process was “chaotic”.  The claim is estimated to have a value of over £5,000,000.

Jury finds shortcomings, flaws and missed opportunities in care of detained patient: Leila Benyounes acts in Article 2 Inquest

Leila Benyounes represented the Family of Donna Levin in an Article 2 inquest at Teesside Coroner’s Court presided over by the Senior Coroner for Teesside and Hartlepool, Ms Clare Bailey, sitting with a jury.  Donna, who was a much loved 54-year-old mother of three and special educational needs teacher, was admitted to Roseberry Park Hospital on 28 December 2019 following increased concerns for her safety by her Family. She had been struggling with her mental health for a few months and had been diagnosed with obsessive compulsive disorder. Donna died on 8 January after being found unresponsive in her room at the hospital on 4 January 2020 whilst she was detained under the Mental Health Act.  Following a seven-day inquest during which fourteen live witnesses gave evidence, the jury found that there were shortcomings, flaws and missed opportunities in the care provided to Donna.  The jury found that key risk information was not included in a verbal handover from day staff to night staff or recorded in the electronic medical records, some of which were amended after events. These shortcomings meant that Donna’s risk levels were not amended in a risk assessment, and there was no change to the minimum hourly level of observations and engagements, which should have been increased.  After Donna asked to leave the ward to kill herself, and Donna was detained under the Mental Health Act, the jury found that there was no further assessment to take into account Donna’s further deterioration. Planned hourly checks were not undertaken, the observation sheet was falsely completed, and there were several missed opportunities in the doctor seeing Donna. Significantly, the jury found that the risk management plan and risk safety were not updated appropriately.  In concluding that Donna died by suicide due to suffering from a mental illness, the jury found that the risks of encouraging sleep to support long term treatment did not outweigh the risk of ensuring short term safety and the risks should have been further considered until the doctor saw Donna.  Links to local news articles:  <a href="https://www.thenorthernecho.co.uk/news/25351119.family-stockton-teacher-donna-levin-release-statement-inquest/">Family of Stockton teacher Donna Levin release statement after inquest</a>  <a href="https://www.gazettelive.co.uk/news/teesside-news/donna-levin-roseberry-park-death-32162956">Family’s ‘painful clarity after clear shortcomings’ in bubbly mum’s care at Roseberry Park Hospital</a>  <a href="https://www.gazettelive.co.uk/news/teesside-news/donna-levin-inquest-roseberry-park-32151354">Jury retire in inquest into ‘full of joy’ teacher allegedly failed by Roseberry Park Hospital</a>  <a href="https://www.thenorthernecho.co.uk/news/25339276.staff-missed-check-patient-roseberry-park-hospital/">Staff missed check on mum at Roseberry Park Hospital before tragedy</a>  Ms Benyounes was instructed by Lois Hepworth of Watson Woodhouse Solicitors.  Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked by Legal 500 and Chambers and Partners for Inquests and Inquiries and Clinical Negligence. Leila is appointed as an Assistant Coroner in two coronial areas and Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters. She has a special interest in obstetric, birth injury and fatal cases providing representation at inquest and in clinical negligence claims. She has been appointed to the Attorney General Regional Civil Panel Band A since 2010. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>.

Fiat accompli? R (Campbell) v HM Attorney General for England and Wales [2025] EWHC 1653 (Admin)

There are two ways of reading the judgment in <a href="https://www.judiciary.uk/wp-content/uploads/2025/07/Campbell-v-Attorney-General.pdf">R (Campbell) v HM Attorney General for England and Wales [2025] EWHC 1653 (Admin)</a>.  For those who are fans of legal theory, there is a meticulous examination of the role and functions of the Attorney General. The Divisional Court considered his functions (for it is currently a “he”) relating to criminal law (such as consenting to certain prosecutions, dealing with contempt of court, and appeals against unduly lenient sentences) and civil law (for example, in relation to vexatious litigants and special advocates). It conducted a detailed examination of the limitations on the justiciability of his decisions. It concluded with a carefully reasoned decision, ultimately refusing permission to apply for judicial review.  For everyone else, there’s paragraph 56.  The question  Mr Campbell’s brother, Geoffrey, was killed when the North Tower of the World Trade Centre collapsed on 11th September 2001. HM Senior Coroner for West London held an inquest in January 2013, in which she recorded that an aircraft was flown into the building as part of Al-Qaeda’s co-ordinated attack, thereby causing its collapse.  Mr Campbell does not accept that the building collapsed due to the impact of the aircraft. He believes it was caused by the detonation of pre-planted explosives or incendiaries.  Section 13(1)(b) of the Coroners Act 1988 permits the High court to quash an inquisition and direct a fresh investigation (or a first investigation, where none has been held). Before doing so, the High Court must be satisfied either that the coroner has refused or neglected to hold an inquest or an investigation which ought to be held, or that it is necessary or desirable in the interests of justice to hold another investigation where the first was tainted by fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise. The application to the High Court must be made by or under the authority or "fiat" of the Attorney General.  Mr Campbell accordingly applied to the Attorney General for authority to apply to the High Court. It was refused.  Mr Campbell sought judicial review of that refusal. It was said that the Attorney General (in fact, the Solicitor General who made the decision on his behalf) had erred in law, made a decision which was irrational and unreasonable, and had failed to give adequate reasons. The Summary Grounds of Defence asserted that the challenged decision was not justiciable at all (or alternatively was challengeable only on exceptional grounds, such as fraud, corruption or bad faith).  The answer  The short answer is that the Attorney General’s decision was not justiciable. Permission to apply for judicial review was refused.  The slightly longer answer involves consideration of authorities stretching back to 1855. The courts developed the clear position that decisions taken by the Attorney General in the exercise of his “public interest” functions were not justiciable in proceedings seeking the prerogative writ of mandamus (the forerunner to modern judicial review). If the Attorney General was answerable to anyone, it was to Parliament.  A key case was Gouriet v Union of Post Office Workers[1978] AC 435. Broad observations were made in that case by the House of Lords as to the courts’ lack of jurisdiction to review the Attorney General’s decisions. Gouriet concerned the Attorney General’s refusal of consent to bring relator proceedings (actions brought by private individuals in the Attorney General’s name, in order to enforce a public right), but the principle is not confined to such proceedings. In R v Attorney General ex p. Ferrante (unreported, 1st July 1994) it was said that Gouriet is of general application, and that whether or not a decision is amendable to judicial review depends on its nature and subject matter.  The Divisional Court concluded that the authorities demonstrated that there is a class of discretionary functions of the Attorney General “whose exercise [are] categorically immune from review”. That class includes the Attorney General’s powers to enforce the law by bringing criminal or civil proceedings in the public interest, and powers to authorise or terminate such proceedings by others. The function in section 13(1)(b) of the 1988 Act is one such power.  Accordingly, the refusal of consent was not justiciable, and it was not open to Mr Campbell to seek judicial review of it.  In the alternative, the Divisional Court said that if the decision had been justiciable, then the only grounds for review would have been dishonesty, bad faith or an exceptional circumstance (none of which applied in this case).  The future?  This is not a decision which appears to have been reached with any degree of enthusiasm.  The Divisional Court noted that the identification of a category of decisions as immune from review on any grounds appears “anomalous”. The fact that the Attorney General is accountable to Parliament, said the Court, “hardly distinguishes those decisions from many others which today would certainly be justiciable” (paragraph 47). In paragraph 54, the Court noted that it must be for a higher court to say if the principle in Gouriet is no longer good law in relation to the Attorney General’s powers. The combined effect of existing authority “is that it is not now open to any court below the Supreme Court to decide otherwise, however anomalous this may seem in the light of the rest of the modern law of judicial review”.  One to watch.  Peter Yates is part of the Inquests Team at Parklane Plowden. Peter's profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/peter-yates/">here</a>.

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10 December 2025

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