16.33R (Cowl) v Plymouth CC [2001] EWCA Civ 1935, (2002) 5 CCLR 42
It was lawful to take a strategic decision to close a care home, subject to completion of assessments at a later date. The parties should have done far more to pursue mediation, notwithstanding the existence of some legal issues
Facts: the claimants challenged the proposed closure of their care home on the basis of inadequate consultation, lack of proper assessments and breaches of ‘home for life’ promises; they rejected the offer of the complaints procedure, with Plymouth’s assurance that it would pay very careful regard to the views of the social services complaints panel.
Judgment: the Court of Appeal (Woolf LCJ, Mummery and Buxton LJJ) dismissed the claimants appeal on the basis that the parties could have, and should still, engage in alternative dispute resolution, notwithstanding the fact that the claimants’ case involved submissions that errors of law had been made. The Court of Appeal did, however, also make it clear, that Plymouth had been entitled to reach a ‘decision in principle’ to close the care home (based on a limited assessment of the residents’ needs), to be followed by detailed assessments later on, before moving any individual resident:
22. We understand the reason why the claimants attach such importance to the assessment being carried out before the decision to close. They do not want an assessment as to the propriety of moving the individual claimants to be taken against a decision that the home is to be closed as that could, they fear, prejudge the outcome. This is why they submit that the full assessment should take place before the decision to close the home is taken. The position of Plymouth now, whatever may have been the position in the past, is clearly to regard the decision to close as merely a decision in principle; that is, to close Granby Way subject to the full assessment of the impact upon the residents of their having to move. This approach on the part of Plymouth is understandable. Plymouth needed to make financial savings. The closure of Granby Way and another home would produce the required financial saving. From Plymouth’s point of view therefore the first step was to consider whether closure would be a viable option. For this purpose they needed a limited assessment of the impact on the residents and of the practicality of their being re-housed, but no more than this. This exercise was carried out. The decision was made to proceed with this option. Detailed examination of what is involved in re-housing was then required so that a final decision could be made. The final decision would only be made after the full assessment of the impact upon the residents. Such an approach could be beneficial to the residents because, if the closure option was not viable, there was no need to subject them to the stress which would be involved in determining what would happen to them if they had to move.
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24. Nonetheless the decision which was taken did not have the technicality the claimants attached to it. There was nothing wrong with Plymouth adopting a two-stage process, with the detailed assessment being part of the second process. However, if this was what they were doing, it is regrettable that far from explaining it they obscured the fact that this was their intention. On the other hand, those who were acting on behalf of the claimants adopted a far too technical approach. Their treatment in their skeleton argument of the authorities on which they rely make this abundantly clear.
25. We do not single out either side’s lawyers for particular criticism. What followed was due to the unfortunate culture in litigation of this nature of overjudicialising the processes which are involved. It is indeed unfortunate that, that process having started, instead of the parties focussing on the future they insisted on arguing about what had occurred in the past. So far as the claimants were concerned, that was of no value since Plymouth were prepared, as they ultimately made clear was their position, to reconsider the whole issue. Without the need for the vast costs which must have been incurred in this case already being incurred, the parties should have been able to come to a sensible conclusion as to how to dispose the issues which divided them. If they could not do this without help, then an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt. Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible.
26. The disadvantages of what happened instead were apparent to the trial judge. They were also apparent to this court. At the opening of the hearing we therefore insisted on the parties focussing on what mattered, which was the future wellbeing of the claimants. Having made clear our views, building on the proposal which had been made in the 23 May letter, the parties had no difficulty in coming to a sensible agreement in the terms which are annexed to this judgment and will form part of the order of the court. The terms go beyond what Plymouth was required to do under the statutory complaint procedure. This does not however, matter because it is always open to the parties to agree to go beyond their statutory obligations. For example, sensibly the claimants are to have the benefit of representatives to appear on their behalf, who may well be non-lawyers who can be extremely experienced in handling issues of the nature of those which are involved. We trust that the parties will now draw a line under what has happened in the past and focus instead on what should happen in the future.
27. This case will have served some purpose if it makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable. If they cannot resolve the whole of the dispute by the use of the complaints procedure they should resolve the dispute so far as is practicable without involving litigation. At least in this way some of the expense and delay will be avoided. We hope that the highly skilled and caring practitioners who practise in this area will learn from what we regard as the very unfortunate history of this case.