Summary

Local authorities with a duty of care to protect vulnerable adults would not be burdened with a duty of care to employees of residential care homes in respect of the sharing of information as to their care practices where to do so might discourage, undermine or inhibit the expression of proper, well-founded and legitimate concerns.

Facts

The first applicant local authority and the second applicant care inspectorate (X) applied to strike out claims made by the respondent care worker (S).

S had owned and managed a care home that had been regulated by the local authority. Following complaints, the local authority cancelled its registration as a care home alleging that S was not fit to run it. A tribunal allowed S's appeal against the closure but specified "serious" failures "in material respects" relating to her management of the home. S was later employed in another residential care home (W). At a routine meeting at W it was mentioned that S was employed there and a representative of X stated that there was a history of complaints and concerns about S's actions and that her registration of a care home had been cancelled. The local authority's representative indicated that it might take legal advice. S was subsequently informed that serious concerns had been raised about her care practices, and she was dismissed following a disciplinary hearing. S claimed that the representatives of the local authority and X were liable for making negligent misstatements at the meeting, inducing a breach of the implied term of trust and confidence in her employment contract and inflicting harm by unlawful means.

The local authority and X submitted that as they owed no duty of care to S, her claims should be struck out under the CPR r.3.4 or that they should be awarded summary judgment under CPR Pt 24 as S had no reasonable prospect of success.

Held

(1) S was not in a relationship of such proximity to either X or the local authority that they owed her a duty of care. It would not be right to impose a duty of care towards S on either of them where both had statutory duties to fulfil as regards protection of adult vulnerable persons which included ensuring that such persons were placed in the care of proper homes and under the care and management of proper and fit persons. X was expected to air and share relevant and material information that might have a bearing on the fitness of the relevant home or person. The imposition of a duty to an employee in such a home which might discourage, undermine or inhibit the expression of proper, well-founded and legitimate concerns presented in a responsible and balanced way would conflict with and undermine the discharge and fulfilment of those statutory duties. Statements that there were previous concerns about S's care practices were factually correct based on the tribunal's findings. S had no reasonable prospect of establishing that X or the local authority had made a negligent misstatement. Furthermore, she could not establish that they caused her any loss. The decision to dismiss her had been taken by W. The information imparted by X had been in the public domain and discoverable by W. (2) The torts of inducing breach of contract and causing loss by unlawful means required an element of intention, OBG Ltd v Allan [2007] UKHL 21, [2008] 1 A.C. 1 and Meretz Investments NV v ACP Ltd [2007] EWCA Civ 1303, [2008] Ch. 244 applied. S was not able to establish the necessary element of intention for either tort. X and the local authority were merely discharging their statutory duties and intending to do so, not to induce a breach of contract or cause loss by unlawful means. Even if intention had been established, it was a necessary ingredient of the tort of inducing breach of contract that there be a breach of contract. The implied term of trust and confidence could not survive the ending of the employment relationship and could not found an independent cause of action, Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 A.C. 518 applied. Accordingly, as S could not establish a breach of contract by her employers, she could not succeed in a claim for inducement. (3) S's claim had no real prospect of success and there was no other compelling reason for a trial. Her case seemed unwinnable and there was no benefit in the continuance of the action.

Application granted