Adults under a disability - local authority wishing to publish report affecting their convention rights and detrimental to their welfare - court having inherent jurisdiction to grant injunction restraining publication

In re a Local Authority (Inquiry: Restraint on publication): FamD (Dame Elizabeth Butler-Sloss President): 27 November 2003

The applicant local authority wished to publish a report which had been commissioned by the local area child protection committee as a result of care proceedings taken by the local authority in respect of six children.

The principal subject of the inquiry, A, and the Official Solicitor, representing several children and a group of vulnerable adults, sought injunctions to restrain publication.

Roger McCarthy QC for the applicant; Richard Booth (instructed by Radcliffes Le Brasseur) for the NHS Strategic Health Authority; Allan Levy QC and Joanna Hall (instructed by Hodge Jones & Allen) for A; Angela Hodes (instructed by the Official Solicitor) for the children and vulnerable adults.

Held, that in the case of children, the parens patriae jurisdiction permitted intervention; that in the case of the vulnerable adults, although certain powers had lapsed in 1959, the court retained a jurisdiction to protect adults who lacked the capacity to make their own decisions and came within the definition of 'patients' in CPR rule 21.1(2); that the latter jurisdiction was not limited to the granting of declarations in medical issues, and, until there was legislation passed which would protect and oversee the welfare of those under a permanent disability, the courts had a duty to continue to use the common law as a safety net to fill gaps where it was clearly necessary to do so; and that the court, having balanced rights under articles 8 and 10 of the European Convention on Human Rights, would maintain injunctions restraining publication in the children's case, and grant such an injunction for the adults since in their case the usual declaratory relief would be insufficient and publication would be in breach of the adults' article 8 rights and seriously detrimental to their welfare.

Medical negligence - pre-trial directions as to exchange of lists of articles and textbooks - Queen's Bench masters' model directions best practice to be followed in county courts

Wardlaw v Farrar: CA (Dame Elizabeth Butler-Sloss President, Lords Justice Brooke and Latham): 27 November 2003

The claimant brought proceedings in the county court, alleging clinical negligence on the part of the defendant.

At trial, certain pages were missing from a textbook which had been put in evidence before the court.

The claimant was awarded 1,000 damages.

On appeal, the claimant submitted, among other things, that such pages should be admitted and that, since they had been missing, the decision could not stand.

Mary Ruck (instructed by Pannone & Partners, Manchester) for the claimant; Caroline Neenan (instructed by Ryans, Cheadle Hulme) for the defendant.

Held, dismissing the appeal, that the missing pages would not now be admitted, since they added nothing and could have been obtained; that it was unfortunate that the common form order in clinical negligence cases, requiring lists of learned articles or textbooks to be exchanged between the parties, had not been given, since that had omission led to serious difficulties; that the standard form of order made by masters in the Queen's Bench Division in clinical negligence cases contained model directions that any unpublished literature on which any expert witness proposed to rely should be served at the same time as his statement together with a list of published literature and copies of any unpublished material, that any supplementary literature on which any expert witness proposed to rely should be notified to all other parties at least one month before trial, that no expert witness should rely on any publications which had not been so disclosed without leave of the trial judge on such terms as to costs as he deemed fit, and that parties should agree the trial bundle not less than seven days before the hearing; that now that so many relatively heavy clinical negligence actions in the multi-track were being conducted in county courts, in addition to district registries of the High Court, it was essential that best practice should be followed throughout the country in relation to case management directions in the multi-track in this specialist field; and that, had those model directions been given in the instant case, the medical literature would have been handled in a more orderly way.