DD v Durham County Council & Anor  EWCA Civ 96,  MHLO 31
"DD appeals against the decision refusing leave and that part of the order relating to the payment of Middlesbrough City Council's costs. There is no appeal against the decision that Durham would be the body liable for any breach of duty or infringement of the Human Rights Act by the second AMHP. ... It was contended by Ms Lieven QC, on behalf of DD, that the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty. It was Ms Lieven QC's primary case that under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held. Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps to ensure that the patient's Article 3 and 8 rights were not infringed. This obligation did not extend to preventing some casual act committed by those at the hospital which might violate the Convention rights of DD. In the alternative, there was a duty of care to like effect to be derived from the scheme of the 1983 Act. ... It is clear, therefore, that the only point we could determine was whether the judge was correct in refusing leave. The threshold under s.139 is a low one: see Winch v Jones  QB 296Not on Bailii! and Johnston v Chief Constable of Merseyside PoliceM. I have no doubt that the argument advanced by Ms Lieven QC meets this threshold. ... I would, therefore allow this appeal on the application under s.139(2). ... In my judgment, DD should not have been made responsible for the costs of Middlesbrough City Council."