Court of Appeal refuses to strike out restitutionary s.117 after-care claim

A local authority and a clinical commissioning group have failed to convince the Court of Appeal that a restitutionary claim for payment of after-care services should be struck out as an abuse of process.

At issue in Richards v Worcestershire County Council & Anor [2017] EWCA Civ 1998 was whether – following the case of O’Reilly v Mackman [1983] 2 AC 237 – the claimant was entitled to proceed under Part 7 of the Civil Procedure Rules rather than by way of judicial review.

The claimant had suffered a head injury in a road traffic accident 33 years ago and this affected his mental health. He received damages following that accident and these are administered by his deputy.

The claimant was compulsorily detained in hospital under section 3 of the Mental Health Act 1983 in 2004. Following his discharge from hospital he received various after-care services.

His deputy funded the services between 2004 and 2013. The defendants – the county council and South Worcestershire CCG – have funded those services since 2013.

The claimant by his deputy and litigation friend is now seeking to recover the costs of the after-care services between 2004 and 2013 (including 18 months' residential placement) on the grounds that the defendants were liable for the costs under section 117 of the Mental Health Act 1983.

The defendants applied to strike out the claim as an abuse of process. Mr Justice Newey rejected that application.

The defendants then appealed on two grounds:

1. The claimant should have brought his claim by judicial review;
2. The defendants' alleged non-compliance with section 117 of the 1983 Act did not entitle the claimant to recover damages for unjust enrichment or restitution.

Lord Justice Jackson, with whom Lord Justice Lewison and Lord Justice Hamblen agreed, dismissed the appeal.

He said the first ground of appeal raised a clean point of law, capable of resolution on the basis of the pleadings, and he decided that point against the defendants.

“The second ground of appeal (despite its formulation as a point of law) raises questions of fact which are hotly contested. This is not, therefore, suitable for resolution on an application to strike out,” Lord Justice Jackson concluded.