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20 Jun 22 Back to Listing

Important new case on when public authorities owe a duty of care

Robert Cohen appeared for the Home Office in FXJ v Home Office [2022] EWHC 1531 (QB), in which judgment was handed down today. The case confirms that despite more general developments in the law of negligence, one litigant does not owe a duty of care to another and the Home Office does not owe a duty of care in exercising its responsibility for immigration. 

FXJ suffers from serious mental illness. A decision was made to deport him to Somalia at the conclusion of a custodial sentence for robbery. He appealed to the First Tier Tribunal unsuccessfully but then appealed to the Upper Tribunal who allowed his appeal. The Home Office delayed in granting FXJ status after the judgment of the Upper Tribunal. Eventually, the Home Office made a late application for permission to appeal to the Court of Appeal. That application was then withdrawn and the Appellant was provided with leave to remain. FXJ alleged that his mental health had declined as a result of the delay. He brought a claim in negligence, for misfeasance and for breach of Article 8 ECHR.

At first instance (where Robert also appeared) HHJ Baucher dismissed each element of the claim. FXJ then obtained permission to appeal. 

In an important judgment, Mr Justice Choudhury dismissed FXJ’s appeal. He held:

  1. One litigant does not owe a duty of care to another. This is the case even where the alleged tortfeasor is a public authority. It is also the case whether or not the claim is for pure economic loss. 
  2. The Home Office does not owe a duty of care for pure omissions arising in the course of it discharging its immigration responsibility. 
  3. The claim for misfeasance was inadequately particularised. 
  4. The delay was insufficient to give rise to a breach of Article 8 ECHR.

 

There are several reasons why this decision is important to public authorities:

  1. It confirms that despite the Supreme Court’s recent extension of duties of care, there are still limits which they can rely upon. 
  2. It prevents arguments that public authorities have a unique status in litigation which would deprive them of protections open to other litigants. 
  3. It emphasises the importance of claims for misfeasance being carefully and specifically pleaded. 

 

Robert Cohen has extensive experience in defending public bodies against claims in tort. He is on the Attorney General’s ‘B’ Panel of Counsel and is ranked in Chambers and Partners and the Legal 500.