Nottinghamshire County Council v Bottomley & Anor

Factual and Procedural Background

The Plaintiff was born on 21 December 1993, suffering hypoxic ischaemia resulting in brain damage and spastic quadriplegia. The Defendant was alleged to have breached its duty by failing to perform an earlier caesarean section and by administering sytocinon. The Defendant admitted breach in December 2006, and proceedings commenced in May 2007. A litigation friend was appointed in May 2008 due to the Plaintiff's mother not providing instructions. Judgment was entered in July 2009 with damages to be assessed at a trial scheduled for June 2010.

The Plaintiff was in transition from children’s to adult care under the local authority's departments. In early 2010, the local authority (Nottingham County Council, "NCC") sought to be joined as a party to the proceedings, prompted by inquiries about potential charges for past and future care costs. NCC’s application was late and opposed by the Plaintiff's representatives, while the Defendant remained neutral. NCC sought joinder on grounds including its ability to give evidence on future care costs, to obtain declarations on reimbursement rights, and to influence the form of any settlement or judgment due to its financial interests.

The trial judge dismissed NCC's application, holding that the local authority had no arguable status to influence damages or settlement form and that financial interests of the local authority were irrelevant to the court’s considerations under CPR Part 41.7. The judge recognized that joinder would delay the trial but found the application unfounded.

The local authority appealed the dismissal of its application to be joined, which this Court allowed, ordering NCC’s joinder and the vacation of the trial date. The reasons for allowing the appeal are set out herein.

Legal Issues Presented

1. Whether the local authority (NCC) should be joined as a party to the proceedings under CPR 19.2 given its financial interest in the amount and form of any damages awarded.
2. Whether the local authority has the right to be heard on the form of any settlement or judgment, particularly regarding lump sum versus periodical payments.
3. The implications of the local authority’s joinder on the role and position of the litigation friend appointed for the Plaintiff.

Arguments of the Parties

Local Authority's Arguments

• NCC contended it could give evidence on the Plaintiff’s future placement and care costs.
• It sought a declaration on its ability to claim reimbursement from any damages awarded.
• NCC asserted it should be heard on the form of any settlement or judgment, as this would affect its financial liabilities and rights.

Plaintiff's Arguments

• It was unnecessary for NCC to be joined; its employees could be called as witnesses without joinder.
• Joinder would cause delay by vacating the trial date.
• The local authority had no proper status to influence the amount or form of any settlement or damages award.
• Following precedent, damages should be awarded on the basis that the Plaintiff will fund her care from those damages, making local authority joinder unnecessary.

Defendant's Arguments

• The Defendant remained neutral on the issue of joinder.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by identifying a conflict of interest involving the litigation friend, who represented the Plaintiff but was employed by the local authority with financial interests potentially adverse to the Plaintiff. This conflict necessitated the replacement of the litigation friend if NCC were joined, leading to the inevitable vacating of the trial date.

The Court interpreted CPR Part 19.2 broadly, emphasizing the desirability of adding parties to resolve all matters in dispute, including those connected to the local authority’s financial interest in the award. It held that the local authority’s financial stakes in the form and amount of damages—particularly whether payment would be lump sum or periodical payments—are relevant "circumstances" under CPR Part 41.7, which the court must consider when deciding the form of award.

The Court reviewed relevant precedent confirming that local authorities have a legitimate interest in being joined to clarify their rights and liabilities before settlement or judgment. It rejected the lower court’s view that financial interests of the local authority were irrelevant, holding instead that these concerns are integral to the case’s resolution.

Given the absence of prejudice to the Plaintiff and the continuing care provided by the local authority, the Court found no substantive reason to refuse joinder despite the late application and resulting delay. The Court also noted the importance of avoiding any appearance of conflict or unfairness in the litigation friend’s role.

Holding and Implications

The Court ALLOWED THE APPEAL and ordered the joinder of the local authority as a party to the proceedings. Consequently, the trial date was vacated.

This decision ensures that the local authority’s financial interests related to the Plaintiff’s future care and the form of any damages award are properly considered within the litigation. It also addresses the conflict of interest inherent in the current litigation friend’s position, mandating her replacement to maintain fairness and independence in representation.

No new legal precedent was established beyond affirming the desirability and appropriateness of local authority joinder in such cases, consistent with existing authorities. The direct effect is to permit full resolution of all matters in dispute, including those affecting the local authority, before final determination of damages.