Malicious Prosecution
Cases
Tracey v The Minister for Justice, Equality and Law Reform & ors
Discovery
[2018] IEHC 416 (23 July 2018)
JUDGMENT of Mr. Justice Robert Eagar delivered on the 20th day of April 2018.
1. This is a judgment on the plaintiff’s application for discovery from all defendants in respect of his notice of motion issued on the 12th July, 2017.
2. The affidavit of Mr Kevin Tracey grounding the application for a notice of motion in respect of discovery of documents set out the background to the case. Mr Tracey states in his affidavit that the case involves a further malicious prosecution of the plaintiff on the 6th July, 2006, for alleged threatening, abusive and insulting behaviour with intent to provoke a breach of the peace at the offices of the Courts Service at Ãras Uà Dhálaigh involving a member of An Garda Siochána (Keith Lambe of the Bridewell Garda Station) who allegedly responded to a call to the Gardai made by an employee of the Courts Service (Hazel Bell) acting in accordance with a standing order. Garda Lambe confirmed that Ms. Bell had called the Gardai and that she informed him that they had been instructed to call the Gardai prior to dealing with Mr. Tracey. On 6th July 2006, the plaintiff was present in the Summons Office of Ãras Uà Dhálaigh in an investigation of ongoing fabricated and malicious summonses and prosecutions of him which came from that office. This particular malicious prosecution was struck out in the District Court on the 9th August, 2007.
3. He further suggests in this affidavit that the particular malicious prosecution coincided with a planning dispute with his next door neighbour.
4. On the 15th July, 2009, the plaintiff wrote a letter to the Chief State Solicitor representing the State defendants (Defendant 1, 2, 3, 4, 5 and 7) seeking voluntary discovery with categories listed and reasons given. He said that this correspondence was ignored by the Chief State Solicitor.
5. On the 18th January, 2010, the State proceeded with a motion to have this case and six other cases managed by a judge of the High Court. On the 3rd March 2010, the plaintiff wrote a further letter to the Chief State Solicitor representing the State defendants regarding the issue of voluntary disclosure sought earlier in his letter of the 15th July, 2009. He says that this correspondence was also ignored by the Chief State Solicitor.
6. On the 7th January, 2011, the State proceeded with a motion to strike out the case along with five other cases. On the 4th March, 2011, this case and three other cases were struck out in his absence and he explains that his absence was due to a critical illness.
7. On the 26th July 2016, the Supreme Court allowed the appeal of the plaintiffs and discharged the order of the High Court judge, dismissing each of the relevant proceedings. Clarke J. in the Supreme Court stated: – “It is of utmost importance, in that context, that it be understood that any directions given by a case management judge in the future should be strictly complied with”.
8. This Court has been managing the cases the subject matter of the Supreme Court decision.
9. In respect of the Courts Service defendant, the plaintiff states that on the 15th July, 2009, he wrote a letter to the solicitor for the Courts Service defendant (the sixth named defendant) seeking voluntary discovery with categories listed and given. He said that this correspondence was ignored by the solicitors for the sixth named defendant. He said that on the 11th January, 2010, he wrote a further letter to the solicitor for the Courts Service defendant seeking voluntary discovery with categories listed and reasons given. He says that this correspondence was also ignored by the solicitor for the sixth named defendant. He said that on the 5th March, 2010, he wrote a letter to the solicitors for the Courts Service defendant regarding the issue of voluntary discovery sought earlier in his letters of the 15th July, 2009 and the 11th January, 2010; he said that this correspondence was also ignored by the solicitor for the sixth named defendant. He said that on the 28th March, 2017, the solicitor for the sixth named defendant wrote to him in response to his letter of the 15th July,, 2009 but failed to respond to his later letter of the 11th January 2010. On the 2nd May 2017, at a case management hearing, a booklet of correspondence for this case and case number 6407P/2006 were presented to him by the solicitor for the sixth named defendant, some documents in both cases were omitted and he says that he is seeking inspection of all discovery documents.
10. This motion was heard on the 23rd March, 2018, and by letter dated the 22nd March, 2018, the State defendants wrote to the plaintiff “with a view to narrowing the issues before the court tomorrow”. The letter indicates that consequently the only categories now an issue before the Court are Categories 3, 4, 8, 10 and 15.
The State Defendants
Category 1
11. In his letter of the 15th July 2009, the plaintiff sought a copy of the entire application paperwork in the possession of the State defendants in relation to District Court summons including the SA 1 form.
12. The response of the State defendants was that the plaintiff is not entitled to this category of documentation. The plaintiff is aware of the nature and contents of the District Court summons and does not require the application paper related thereto. In any event the said documentation is privileged.
13. However, strictly without prejudice to the foregoing, they were instructed that the application paperwork in relation to the District Court summons was sent to the Courts Service for processing, they note that the Courts Service are agreeable to making discovery of this documentation and they confirmed that the State defendants have no documentation pertaining to same. The State defendants agreed to make discovery identifying that they have no documents.
Category 2
14. The plaintiff sought a copy of the declaration of service for District Court summons in relation to the alleged offence in the public offices of Ãras Uà Dhálaigh at the Four Courts.
15. The State defendants say that the documentation is irrelevant, that the plaintiff was served with the summons and pursuant to which he attended court. However, they say that, strictly without prejudice to the foregoing, they are instructed that this documentation is not in the power, possession or procurement of the State defendants and note that the Courts Service are agreeable to make discovery of this category of documentation. The State defendants agreed to make discovery identifying that they had no documents.
Category 3
16. The plaintiff sought copies of statements from all witnesses and other people who were present at the public offices of Ãras Uà Dhálaigh at the Four Courts on the 6th July, 2006.
17. The response of the State defendants was that their documentation was privileged. Further that, strictly without prejudice to the foregoing they were instructed that no statements were taken by the state defendants at the time of the incident. Statements were taken after the initiation of these proceedings – these proceedings attract litigation privilege as they were taken in contemplation of litigation.
18. The Court notes, that the plaintiff has sought statements from “all witnesses and other people who were present in the public offices of Ãras Uà Dhálaigh at the Four Courts on the 16th July 2006”. This category of documentation is too wide. Further, the Court rules that statements taken in contemplation of litigation are subject to litigation privilege.
Category 4
19. The plaintiff sought copies of documentation setting out the reasons for the withdrawal of the prosecution on the date of trial.
20. The State defendants say that the plaintiff is not entitled to this category of documentation as it is privileged and specifically that, the category of documentation attracts public interest privilege in that it relates to the decision of the Director of Public Prosecution to prosecute or not.
21. It is the view of this Court, that the category of documentation attracts public interest privilege in that it relates to a direction of the Director of Public Prosecution to prosecute or not. The plaintiff is aware clearly that the summons was withdrawn by the prosecution. .
Category 5
22. The plaintiff sought a copy of the notebook entries of Garda Keith Lambe dated the 6th July, 2006.
23. The response of the State defendants is that this documentation is privileged, but without prejudice to the foregoing the State defendants agreed to provide discovery in relation to this category of documentation.
Category 6
24. The plaintiff sought on discovery a copy of the notebook entries taken by Garda Keith Lambe of the Bridewell Garda Station on the 23rd May, 2007.
25. The State defendants say that this documentation is privileged but without prejudice to the foregoing the State defendants agreed to provide discovery in relation to this category of documentation.
Category 7
26. The plaintiff sought a copy of notebook entries taken by Garda Keith Lambe on 9th August, 2007.
27. The State defendants claimed that this documentary information is privileged and strictly without prejudice to the foregoing the State defendants agreed to provide discovery in relation to this category of documentation.
Category 8
28. The plaintiff sought a copy of the file sent to the Director of Public Prosecutions in the prosecution of this alleged offence by Garda Keith Lambe of the Bridewell Garda Station.
29. The State defendants say that the plaintiff is not entitled to this documentation, that the said documentation is privileged and particularly attracts public interest privilege in that it relates to a decision of the Director of Public Prosecutions to prosecute or not.
30. The Court is satisfied that the State defendants are correct in that a file sent to the Director of Public Prosecutions in respect of the prosecution of an offence is privileged.
31. The Court is also of the view that special consideration is given in relation to proceedings involving the State. InMcGrath v. The Commissioner of An Garda SÃochána[1991] 1 I.R. 69, McCarthy J. stated at pp 75: ”Where one organ of State has been a contestant in the first trial of the issue, (in this case the District Court proceedings), then, in my view, another organ of the State has the necessary privity.” on the grounds of issue estoppel. The Court will refuse the plaintiff discovery in relation to Category eight, as sought against the State defendants.
Category 9
32. The plaintiff sought documentation relating to the setting up of the standing order against the plaintiff.
33. The State defendants say that there are no documents relating to the setting up of any standing order involving the plaintiff, the plaintiff has been furnished with the précis of evidence prepared by Garda Keith Lambe for the purpose of prosecution arising from the events of 16th June, 2006. Strictly without prejudice to the foregoing, the State defendants are agreeable to making discovery which will identify that there are no documents in this category.
Category 10
34. The plaintiff sought requisition documents in the possession of the Gardai and that they be given to the Courts Service regarding the obtaining video footage as the incident that caused the creation of the standing order.
35. The State has responds that this category is irrelevant and unnecessary. The events referred to do not form part of the plaintiff’s claim. The State defendants assert that there was no standing order referred to by the plaintiff and there is no video footage claiming same. The Court’s view is that the category is far too wide and does not relate to the plaintiff’s claim and in those circumstances refuses discovery of the documents sought in Category 10.
Category 11
36. The plaintiff sought requisition documents in the possession of the Gardai and DPP given to the Courts Service regarding the obtaining of video footage as the incident in court to create the standing order.
37. The State defendants say that the category is irrelevant and unnecessary and the events do not form part of the plaintiff’s claim. Strictly without prejudice to the foregoing no such requisition documentation exists and the State defendants agreed to make discovery identifying that no such documentation exists in their possession.
Category 12
38. The plaintiff sought a copy of the standing order that the Gardaà be called in the event of the plaintiff appearing in the public offices of Ãras Uà Dhálaigh at the Four Courts.
39. The State defendants response is that no such documentation exists and the State defendants agreed to make discovery identifying that no such documentation exists.
Category 13
40. The plaintiff sought video footage supporting Garda Keith Lambe’s allegations of 6th July, 2006, in the ground floor public areas of Ãras Uà Dhálaigh.
41. The State’s defendant’s response is that neither the Gardaà nor the DPP requisitioned any such video evidence and the State defendants agreed to make discovery identifying that no such documentation exists.
Category 14
42. The plaintiff sought copy of requisition documentation in the possession of the Gardaà and the DPP, given to the Courts Service.
43. The State defendants response is that neither the Gardaà nor the DPP requisitioned any such video evidence and the State defendants agreed to make discovery identifying that no such documentation exists.
Category 15
44. The plaintiff sought discovery in relation to the procedure regarding the storage of video tape footage in the Bridewell Garda Station.
45. The State defendants say that this category is irrelevant. The Court is of the view that the storage or otherwise of video tape footage is not a matter which is relevant to this particular action. The Court, therefore, refuses discovery of this category.
Category 16
46. The plaintiff sought documentation in the possession of the Gardaà indicating the attendance and names of the Gardaà in the public offices of Ãras Uà Dhálaigh on 6th July, 2006.
47. The State defendants response is that this category is irrelevant. Strictly without prejudice to the foregoing no such documentation exists and the State defendants agreed to make discovery identifying that no such documentation exists.
The Courts Service
48. Mr. Tracey had sought discovery by letter dated the 15th July, 2009 in respect of the Courts Service.
Category 1
49. The plaintiff sought discovery of copy of the entire application paperwork in possession of the Courts Service relating to the District Court summons including the SAI form. The response of the Courts Service was to agree to make discovery of its file in relation to the District Court’s summons.
Category 2
50. The plaintiff sought a copy of the declaration of service for the District Court summons in relation to the alleged offence. In response, the Courts Service agreed to make discovery of this category.
Category 3
51. The plaintiff sought copies of statements from all witnesses including Hazel Bell and other people who were present in the public office of Ãras Uà Dhálaigh in the Four Courts on the 6th July 2006 and the Courts Service agreed to make discovery of this category.
Category 4
52. The plaintiff sought a copy of the District Court order for the 9th August, 2007 setting out the reasons for the withdrawal of the prosecution on the date of trial. The Courts Service agreed to make discovery of the District Court order of the 9th August, 2007.
Category 5
53. The plaintiff sought a copy of telephone records in the possession of the Courts Service for the 6th July 2006 at the ground floor public offices for summonses in Ãras Uà Dhálaigh at the Four Courts. The Courts Service agreed to make discovery of this category.
Category 6
54. The plaintiff sought a copy of all details in the possession of the Courts Service that led to the setting up of the standing order against the plaintiff including all documentation, details of all personnel and all that was written and said by them.
55. The Courts Service objected to this category as it is too broad and onerous and would lead to the Courts Service having to make enquiries and searches encompassing every record held by the Courts Service in all its offices from 1999 to date regardless of whether it related to the plaintiff or the plaintiff’s case, however without prejudice to the foregoing, the sixth named defendant agreed to make discovery of the following documentation created prior to the 6th July 2006 by personnel working in the Dublin District and Circuit Court offices relating to any complaints about the plaintiff and limited by the search terms and named custodians to be agreed. This Court is of the view that Category 6 is far too broad and also largely irrelevant to the case being made by the plaintiff.
Category 7
56. The plaintiff sought a copy of the standing order in the possession of the Courts Service that the Gardaà be called in the event of the plaintiff appearing in the public offices of Ãras Uà Dhálaigh at the Four Courts. The Courts Service agreed to make discovery of this category.
Category 8
57. The plaintiff sought copies of all videotape footage in possession of the Courts Service prior to the 6th July, 2006, that sustains its reasoning for the existence of the standing order against the plaintiff. The Courts Service agreed to make discovery of this category.
Category 9
58. A copy of the videotape footage in the possession of the Courts Service for the 6th July, 2006, in the ground floor public area of Ãras Uà Dhálaigh at the Four Courts covered by Garda Keith Lambe’s allegations. The Courts Service agreed to make discovery of this category.
Category 10
59. The plaintiff sought copies of all standard operating procedures (SOP) documentation in the possession of the Courts Service regarding videotape footage that contains material that is considered evidence of a crime. The Courts Service agreed to make discovery of this category.
Category 11
60. The plaintiff sought a copy of all standard operating procedures documentation in the possession of the Courts Service regarding the storage of videotape footage in the premises of Ãras Uà Dhálaigh in the Four Courts. The Courts Service agreed to make discovery of this category.
Category 12
61. The plaintiff sought a copy of the requisition documentation in the possession of the Courts Service issued by Garda Keith Lambe with regard to obtaining the video footage of the incident he alleges occurred on the 6th July, 2006. The Courts Service agreed to make discovery of this category.
Category 13
62. The plaintiff sought copies of documentation in the possession of the Courts Service indicating the presence of security personnel in the ground floor public area of Ãras Uà Dhálaigh in the Four Courts on the 6th July, 2006.
63. The Courts Service objected to this request in the terms sought as drafted, the reference to “documentation” would require the sixth named defendant to carry out a complete review of all documents within its possession regardless of whether they related to the plaintiff’s case or not. Accordingly the discovery sought was too wide and onerous. Without prejudice to the foregoing the sixth named defendant agreed to make discovery on the following terms: –
“A copy of all procedures in the possession of the Courts Service regarding the presence or otherwise of security personnel on the ground floor public areas of Ãras Uà Dhálaigh at the Four Courts on the 6th July 2006.”
The Court agrees that the reference to documentation would require an overly onerous requirement of the Courts Service and the court agrees and believes that the compromise offered by the Courts Service is appropriate.
Category 14
64. The plaintiff sought copies of documentation in the possession of the Courts Service indicating the attendance and names of Gardaà in the ground floor public area of Ãras Uà Dhálaigh at the Four Courts on the 6th July, 2006. The Courts Service objects to this category on the basis that it is neither relevant nor necessary for the disposal of the issues between the parties. This request is also a fishing expedition, is far too broad and onerous. This request would require the sixth named defendant to make inquiries and carry out searches that would encompass every record held by the Courts Service in all its offices from 1999 to date regardless of whether it relates to the plaintiff or the plaintiff’s case.
65. Without prejudice to the foregoing, the sixth named defendant is neither responsible for the presence of or otherwise of An Garda Siochána in any part of Ãras Uà Dhálaigh, therefore, there is no reasonable basis to require the sixth named defendant to undertake a review of all of its documents.
66. The Court is also satisfied that this category is far too wide, that it is a fishing expedition, and that it is neither relevant nor necessary for the disposal of the issues between the parties. The Court refuses the discovery of this category.
67. Subsequently, the plaintiff sought voluntary discovery dated the 11th January, 2010, and the categories were as follows:
Category 1
68. The plaintiffs sought in respect of the issuing of the summons of the 13th November, 2006, with regard to the alleged incident in Ãras Uà Dhálaigh, on the 6th July, 2006, official record of any application for decision to issue same, issuing of same, and any documents upon which the defendant intends to rely in support of the claim, the summonses brought against the plaintiff was not malicious or based on falsity. The Courts Service agreed to make discovery of this category.
Category 2
69. The plaintiff sought evidence of any instruction from anywhere in the Courts Service or outside to Hazel Bell or /any member of staff at the summons counter in Ãras Uà Dhálaigh, or any other person within or outside of the Courts Service to establish that the person receiving instruction should call Gardaà prior to dealing with the plaintiff.
70. The Courts Service objected to the making discovery of this category of documents on the basis that the category is too broad in its terms and the documentation sought is already sought in amended Categories 6 and 7 of the plaintiffs’ letter dated the 15th July, 2009. The Court is satisfied that making discovery of this category of documents is too broad in its terms and the relevant documentation has already been agreed to be discovered in respect of Categories 6 and 7 of the plaintiff’s application of the 15th July 2009.
Category 3
71. Any evidence on which the defence will rely in their contention that witnesses were present when the defendant allegedly engaged in outrageous behaviour including name-calling Garda Lambe in Ãras Uà Dhálaigh on the 6th July 2006 including names and addresses of witnesses present, affidavits and statements on the matter.
72. The Courts Service objected to making discovery of this category of documents on the basis that the category is too broad in its terms and the documentation is also sought in amended Categories 3, 6 and 7 of the plaintiff’s letter dated the 15th July 2006. The Court is satisfied that the response of the Courts Service is satisfactory in regard to this category.
Category 4
73. The plaintiff sought any evidence on which the defence will rely to show cause why servants or agents of the sixth named defendant called the GardaÃ, and how such a call was made “reasonably and without malice”, plus evidence, law, case law or learned opinion in a manner in which the defendants will rely to show words spoken by agents or servants of the Courts Service were covered by qualified privilege.
74. The Courts Service objected to the making of discovery of this category of document on the basis that the category is too broad in its terms and the documentation sought is already sought in amended Categories 3, 6 and 7 of the plaintiff’s letter dated the 15th July 2006.
The Court also notes that the seeking of evidence, law, case law, or learned opinion upon which the defendants will rely on are not matters which are covered by discovery.
Category 5
75. The plaintiff sought all communications by telephone, text or otherwise between the sixth named defendant and the office of the Director of Public Prosecutions on the 6th July, 2006.
76. The Courts Service objected to the making of the discovery of this category of documents on the basis that it was neither relevant nor necessary, and further, the sixth named defendant has agreed to make discovery of Category 5 of the plaintiff’s letter dated the 15th July 2009. The Court is satisfied that making discovery of this category of document is far too broad for the purposes of this case, and the Court will refuse discovery, save with regard to the agreement of the Courts Service to make discovery of Category 5 of the plaintiff’s letter dated the 15th July 2009.
Category 6
77. The plaintiff sought copies of all files which have entries including notes, whether electronic or otherwise in possession of the sixth named defendant in relation to the conduct of the plaintiff on or before the 6th July, 2006.
78. The Courts Service objected to the making of discovery of this category of documents on the basis that the category is too broad in its terms and the documentation sought is already sought in Categories 3, 6 and 7 of the plaintiff’s letter dated the 15th July, 2009. The Court is satisfied that the making of discovery of this category of documents is far too broad and the Court refuses discovery of this category.
Category 7
79. The plaintiffs sought copies of video footage in possession of the Courts Service for the 6th July, 2006, from the time the plaintiff entered the area of the summons counter until he left on the same date, plus all standard operating procedures (SOP) documentation in possession of the Courts Service regarding storage and release of videotape evidence containing material which could be considered a crime.
80. The Courts Service agreed to making discovery of this category of documents but the Courts Service notes that the documentation falling within certain categories agreed to be discovered by the Courts Service may have already been destroyed, in the event that this is the case, the matter will be addressed in the relevant schedule of the Courts Service affidavit of discovery.
Decision of the Court
81. The Court directs discovery in respect of Category 1 as outlined by the State defendants and Category 2 as outlined by the State defendants. The Court directs discovery in relation to Category 5 and Category 6, as indicated by the State defendants, Category 7 as indicated by the State defendants, Category 9 as outlined by the State defendants, Category 11 as outlined by the State defendants, Category 12 as outlined by the State defendants, Category 13 as outlined by the State defendants, Category 14 as outlined by the State defendants and Category 16 as outlined by the State defendants.
The Courts Service
82. The Court directs in relation to the Courts Service, discovery in relation to Categories 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 as outlined by the Courts Service in its correspondence to the plaintiff on the 19th January, 2018.
Plaintiff’s letter to the Courts Service of the 11th January, 2010
83. The Court directs discovery of Category 1 of this letter, Category 6 as outlined by the Courts Service and Category 7 as outlined by the Courts service.
84. The Court will direct that an affidavit of discovery be prepared by a named individual, for the State defendants and for the Courts Service.
Crawford v Jenkins
[2014] EWCA Civ 1035 (24 July 2014)
Sir Timothy Lloyd:
Introduction and summary
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- This appeal by the Claimant, Mr Lincoln Crawford, is brought against an order of Her Honour Judge Baucher in the Central London County Court dated 2 October 2013. Her order was made on submissions by way of preliminary issues of law on the facts alleged by the Claimant. The Claimant Appellant and the Defendant Respondent, Ms Bronwen Jenkins, were formerly husband and wife. He is a barrister, she a solicitor. They have two children. The present proceedings are part of an acrimonious sequence of litigation arising from the breakdown of the marriage.
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- On 16 July 2009 the Claimant was arrested for breach of an order made in the matrimonial proceedings. An hour later he was arrested again for breach of a different order made in other proceedings. He was detained for just over four hours as a result of the two arrests. The arrests were effected following information being given to the police by the Defendant. The Claimant was released on bail and no prosecution ensued.
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- By her order the judge declared, in paragraph 3, that the Defendant’s “complaint to the police was protected by immunity from suit” and, in paragraph 4, that the remainder of the claim against the Defendant under the Protection from Harassment Act 1997 (“the 1997 Act”), based on two text messages identified in the Amended Particulars of Claim, should be struck out.
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- I will need to describe the dispute and the proceedings in more detail below, but the first point in the appeal is whether the judge was correct to hold that the Defendant was not liable to be sued for damages for false imprisonment on the basis that her acts which would be relevant to the cause of action were statements made to the police which might have been the basis of evidence in court if the matter had led to a prosecution; I will call this the witness immunity rule. The judge came to that conclusion on the basis of the decision of the Court of Appeal in Westcott v Westcott [2009] QB 407, [2008] EWCA Civ 818. The Appellant contends that this is wrong and that the contrary conclusion follows from the House of Lords’ decision in Roy v Prior [1971] AC 470 and subsequent decisions following it.
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- Issues also arise from the claim under the 1997 Act. One is whether such a claim is also barred by immunity from suit on the same principle, insofar as it relies on statements made to the police; the other, as regards two text messages, is whether the claim should be struck out on ordinary principles as lacking substance.
The relevant events
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- Both parties provided the court with a vast amount of information and documents about the history of the relations between them. Most of it is of no relevance to this appeal. I will confine my summary of the facts to those that appear to me to be relevant. I take these from the Claimant’s Amended Particulars of Claim, which has to be taken at face value for this purpose, so far as relevant, and from other sources so far as uncontested facts are concerned.
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- On 29 October 2003 District Judge Brasse, in the Principal Registry of the Family Division, made an order as regards contact and residence. The children were to reside with the Defendant. She was to allow the Claimant specified contact which included provision for him to collect the two children from their home and to take them to their respective schools on two occasions during the week, to be agreed. Otherwise the Claimant was not to “attend the children’s schools during the week save by agreement”. Failure to comply with this order would not of itself have penal consequences.
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- On 15 May 2006 the Claimant was convicted of an offence under the 1997 Act in the Highbury Corner Magistrates’ Court. The court made a restraining order against the Claimant under section 5 of the Act prohibiting him from doing various specified acts. These included contacting the Defendant, whether directly or indirectly, and attending specified locations (which did not include the school attended by the parties’ daughter). The effect of section 5 is that if he did any of these specified acts without reasonable excuse he would be guilty of an offence.
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- On Saturday 13 June 2009 the parties’ daughter’s school held an Open Day. Both Claimant and Defendant attended the school during that event. While they were both there the Defendant sent to the Claimant two text messages objecting to his presence, at 12.15 and at 16.13 respectively. They were as follows:
“You should leave. Both children are conflicted. I feel awkward in your presence. You pay nothing. Have just spent 65 pounds on new uniform. Go away.”
“You were in breach of your restriction today being at school as you well know, no arrangements for you to be there and not in accordance with any order.”
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- On 19 June the Defendant complained to the police that the Claimant had been in breach of the two court orders that I have mentioned by virtue of his presence at the school open day. She made statements to the police orally on that day and in writing on 26 June. On 15 July she sent a copy of the 2003 order to the police by fax. The Claimant contends that the allegations made on 19 June were made intending to cause him distress, which they did, and that when she signed the statement on 26 June which alleged that he had committed a criminal act, she knew that this statement was false.
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- On 16 July the Claimant attended Holborn Police Station and was arrested at 15.29 for breach of the 2003 contact order, and detained in police custody. At 16.41, it having been pointed out that the contact order contained no power of arrest, the Claimant was arrested again, this time for breach of the restraining order made in 2006. His detention continued until he was released on bail; according to the police this happened at 19.40. The Crown Prosecution Service decided that no further action should be taken. There was, therefore, no prosecution to complain of, but the Claimant had been arrested, unlawfully so he contends, and he therefore sued in respect of the arrest and the resulting period of detention. His case is that the arrests were made on the basis of the Defendant’s complaints to the police.
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- The Claimant alleges that the Defendant made her complaint to the police knowing that there was no breach of the 2003 order, and that any issue under that order could only be resolved in the family courts, and that the 2006 order did not apply to attendance at the school. On that basis he alleges that her allegations to the police were premeditated and false, and were intended to paint the Claimant in a bad light in connection with an imminent disciplinary hearing.
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- His claim as regards harassment alleges a course of conduct which consisted of (a) the two successive text messages quoted above and (b) the complaint to the police on 19 June, the written statement supplied on 26 June and the supply of a copy of the 2003 order on 15 July, resulting in the arrest of the Claimant. He also alleges that by reason of the text messages quoted above, the Defendant’s complaints to the police and his arrests, he was deeply alarmed and suffered profound distress.
The proceedings and the claims at issue in the appeal
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- In his Amended Particulars of Claim, the Claimant put forward a variety of claims against the Defendant. Of these, only two are now relevant: claims for damages against the Defendant for false imprisonment, and for harassment under the 1997 Act. From the facts which I have described above, it is clear that his case as regards false imprisonment is not that the Defendant herself effected the imprisonment, but that she procured the police to arrest and detain the Claimant, and that she did so maliciously. Thus, as against her it is really a case of malicious procurement of imprisonment.
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- On 13 September 2013 His Honour Judge Freeland Q.C. gave directions for trial, which was to start on 30 September, and various case management directions. He directed the parties to address the issue of immunity from suit in their skeleton arguments, and contemplated that the trial judge might be asked to rule on this issue at the outset of the trial. It was after this order and before 30 September that the claim against the police was settled.
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- The case came on for trial according to these directions before Her Honour Judge Baucher on 30 September. As at the hearing before Judge Freeland, the parties, though without retained solicitors, had the benefit of representation by Counsel instructed on a direct access basis, as in turn they have before us. The judge was invited to rule on the immunity issue first, which she did in a first judgment given on 1 October. She held that the Defendant was immune from suit in respect of her complaints to the police, and what she had said to the police in that context, both as regards false imprisonment and as regards harassment. She then heard further argument as to whether the two text messages quoted above could on their own provide the basis for a claim for harassment, or whether they were protected by the statutory defence in section 1(3)(c) of the Act, which applies if the person who pursues a relevant course of conduct shows that in the particular circumstances its pursuit was reasonable. She held in a further judgment that the claim for harassment based on those two messages could not succeed because the statutory defence would be made out. She therefore dismissed the Claimant’s claim against the Defendant. She refused permission to appeal, the order recording that this was sought only on the issue of immunity from suit.
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- The Claimant then filed an Appellant’s Notice. That document does not set out, at section 5, the order, or the part of the order, that he wished to appeal against. At that point it merely said “Please see attached”. I take it that the attached document referred to was one headed “Grounds for permission to appeal to the Court of Appeal” signed by Mr Wilson Q.C., running to eight pages, dated 11 October 2013, which was a few days before the date when the Appellant’s Notice was filed. This document contains submissions both about false imprisonment and about harassment; the latter submissions address both the question of immunity and whether the judge was justified in ruling that a claim based on the two text messages would fail, regardless of immunity. Consistently with this, the Claimant’s skeleton argument for the appeal, signed by Mr Wilson and dated 29 October 2013, challenges the judge’s decision on the harassment claim as regards the two text messages as well as on the immunity issue.
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- The Appellant’s Notice ought to have set out, either within the document itself or in an annexed or attached document, exactly what part of the order was sought to be challenged on appeal. It did not. The grounds of appeal ought to have been set out clearly and succinctly, in the Appellant’s Notice itself or in a short annexed document, much shorter than the eight page document to which I have referred, which was largely devoted to argument, and in that way overlapped with the skeleton argument which was submitted later.
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- The application for permission to appeal was considered on the papers by Aikens LJ who granted permission. His express reasoning referred to the issue of immunity only, but he did not expressly limit the grant of permission to appeal to that point, nor did he refuse permission to appeal on any issue. Accordingly, as it seems to me, he must be taken to have granted permission to appeal both on the immunity point (as regards both false imprisonment and harassment) and as regards whether the two text messages could give rise to a claim in harassment. It is possible that the presence of the separate appeal against the striking out of the claim for harassment based only on the two text messages may not have sprung off the page to his notice. That would be speculation, but the question would not have arisen if the Appellant’s Notice had been in the proper form.
-
- The Defendant served a Respondent’s Notice. In part this proceeds on the basis that there is no appeal against the striking out of the claim in harassment based on the two text messages. As I have indicated, that seems to me to be a false premise. Otherwise the Defendant seeks to uphold the judge’s order on the basis that, first, the claim for false imprisonment has no reasonable prospect of success, secondly, that the claim under the 1997 Act has no reasonable prospect of success, and thirdly that the action is an abuse of process and should be struck out for that reason. These are therefore striking-out remedies, which were not sought before the judge below, save as to the claim based on the two text messages once she had held that witness immunity applied to the rest of the claim under the 1997 Act. The point made about the 1997 Act claim is expressly made on the footing that there was no challenge on appeal to the decision about the two text messages. Since, as I have explained, this is a false assumption, it seems appropriate to treat that ground in the Respondent’s Notice as applying to the claim so far as it is based on the two text messages.
The witness immunity rule
-
- The essence of the principle, long established and not in doubt, is that no action will lie against a witness for words spoken in giving evidence in a court, even if the evidence is given falsely and maliciously. It applies to the contents of a proof of evidence, and to communications leading towards the giving of evidence. No action lies against the witness, or potential witness, for defamation or otherwise for damages in respect of the words spoken or written. The immunity has been held to apply to out of court statements which can fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution: see Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, Lord Hoffmann at 215 approving what Drake J said in Evans v London Hospital Medical College [1981] 1 WLR 184 at 192. It has been held to apply from the time of the first complaint to the police as regards a matter which might lead to a prosecution, and therefore to cover the initial complaint: see Westcott v Westcott [2009] QB 407.
-
- The courts have recognised a conflict between this immunity, on the one hand, and the need to afford a remedy to a person who has been injured by wrongful conduct on the part of another. The immunity is afforded for sound reasons of policy, but it must not be extended further than is necessary. Thus, in Darker v Chief Constable of West Midlands [2001] 1 AC 435 Lord Hope of Craighead said, at page 446:
“The question that has been raised relates to the further extent of the immunity. Where are the boundaries to be drawn? It arises because there is another factor that must always be balanced against the public interest in matters relating to the administration of justice. It is the principle that a wrong ought not to be without a remedy. The immunity is a derogation from a person’s right of access to the court which requires to be justified.”
“Absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being Sir Thaddeus McCarthy P’s proposition in Rees v Sinclair [1974] 1 NZLR 180, 187, “The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice …”.”
“It is temptingly easy to talk of the application of immunities from civil liability in general terms. But since the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy, it should be only allowed with reluctance, and should not readily be extended. It should only be allowed where it is necessary to do so.”
-
- In his speech in Taylor v Director of the Serious Fraud Office Lord Hoffmann observed at page 215 that “as the policy of the immunity is to encourage freedom of expression, it is limited to actions in which the alleged statement constitutes the cause of action”. He pointed out that the immunity does not apply to actions for malicious prosecution “where the cause of action consists in abusing legal process by maliciously and without reasonable cause setting the law in motion” against the claimant, regardless of whether “an essential step in setting the law in motion was a statement made by the defendant to a prosecuting authority or even the court”. He said that actions for defamation and for conspiracy to give false evidence plainly fall within the policy of the immunity and actions for malicious prosecution fall outside it, and commented that this left “some disputed ground” between those categories.
-
- In Roy v Prior [1971] AC 470 it was held that the immunity did not extend to an action for malicious arrest, where the arrest of the plaintiff, under a bench warrant, had been procured by evidence given by the defendant to a judge in support of an application for the issue of the bench warrant. Lord Morris of Borth-y-Gest said, at page 477:
“What the plaintiff alleges is that the defendant, acting both maliciously and without reasonable cause, procured and brought about his arrest. The plaintiff is not suing the defendant on or in respect of the evidence which the defendant gave in court. The plaintiff is suing the defendant because he alleges that the defendant procured his arrest by means of judicial process which the defendant instituted both maliciously and without reasonable cause. … The gist of the complaint, where malicious arrest is asserted, is not that some evidence is given (though if evidence is given falsely it may be contended that malice is indicated) but that an arrest has been secured as a result of some malicious proceeding for which there was no reasonable cause.
…
It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains. The essence of the complaint in such a case is that criminal proceedings have been instituted not only without reasonable and probable cause but also maliciously. So also in actions based upon alleged abuses of the process of the court it will often have happened that the court will have been induced to act by reason of some false evidence given by someone. In such cases the actions are not brought on or in respect of any evidence given but in respect of malicious abuse of process (see Elsee v. Smith (1822) 2 Chit. 304).”
-
- In Martin v Watson [1996] 1 AC 74, the claim was for malicious prosecution where the defendant had given information to a police officer indicating that the claimant was guilty of an offence and the facts relating to the alleged offence were solely within the defendant’s knowledge. The defendant was held to have been in substance the person responsible for the prosecution that followed. In that case the issue at trial seems to have been whether the defendant caused the prosecution, but reference was made to the immunity principle in the House of Lords by analogy.
-
- I have already mentioned Taylor v Director of the Serious Fraud Office in which the House of Lords held that the immunity applied to statements made by one investigator to another, or by an investigator to another person helping with the enquiry, or to an investigator by a person helping the enquiry who is not expected to be called as a witness.
-
- I have also mentioned Darker v Chief Constable of West Midlands Police [2001] 1 AC 435 where the immunity was held not to extend to things done by the police during an investigative process which could not fairly be said to form part of their participation in the judicial process, and in particular not to the fabrication of false evidence when performing functions as enforcers of the law or as investigators. A police officer who gave evidence that he had found a quantity of drugs in premises in the possession of an accused would be immune from suit even if the evidence was perjured, but a police officer who had planted the drugs in those premises, which were said in evidence to have been found there, would not be immune from suit in respect of the act of planting the drugs there: see Lord Hope of Craighead at page 449.
-
- The cases in this area have recently been reviewed by Lewison LJ in Singh v Reading Borough Council [2013] 1 WLR 3052, [2013] EWCA Civ 909. In that case the claimant alleged that the council had constructively dismissed her, and had done so unfairly. One of the things she alleged in support of this was that the council had exerted undue pressure on another member of the staff to procure a witness statement containing false evidence, this being alleged to be a breach of the employer’s implied contractual duty of trust and confidence. The Court of Appeal held that this allegation in support of the unfair dismissal claim was not excluded by the immunity principle, since the complaint was not made of the words of the statement themselves but of the manner in which the council had acted in order to procure that it be made.
-
- Lewison LJ started by pointing to the clash between the principle that those who suffer a wrong should not be without a remedy and the other principle that those involved in the judicial process should be immune from civil suit for what they do or say in the course of the litigation. At paragraph 20 he also pointed out that any exception to the basic principle that a wrong should not be without a remedy, which is the basic principle of any system of justice, should be necessary, strict and cogent. At paragraph 21 he set out the basic rule, namely that no action in defamation should lie against a witness for anything said in evidence before a court or tribunal, and that this also applied to the parties, the advocates and the judges. He also noted at paragraph 22 that the scope of the witness immunity rule should not be generalised. At paragraph 23 he identified two strands of policy underlying the immunity rule: first, that those engaged in litigation should be able to speak freely without fear of civil liability; secondly the need to avoid a multiplicity of actions, where one court would have to examine whether evidence given before another was true or not.
-
- Then Lewison LJ considered attempts that had been made to get round the immunity rule, first by bringing an action based on a cause of action other than defamation, and secondly by proceeding on the basis of what happened out of court rather than in court. The former attempts include claiming in conspiracy, the latter include claims based on the contents of the proof of evidence and other preparatory statements, including the communications at issue in Taylor v Director of the Serious Fraud Office, already quoted. He did not refer to the initial complaint leading to consideration of a possible prosecution, which was relevant in Westcott v Westcott, and that case may not have been cited, but it is within the same category and principle.
-
- Then the judge considered a number of general statements that had been relied on in argument, and pointed out that they needed to be taken with care according to the context, and also in the light of later developments in the law, such as that advocates and expert witnesses can now be sued for negligence (though still not for defamation) in respect of acts or omissions arising out of their respective parts in the conduct of litigation.
-
- Following on from this he addressed the limits that have been established to the immunity rule. As already noted the immunity rule does not apply to torts concerned with malicious prosecution, as in Roy v Prior, nor to the creation of real evidence (e.g. the presence of drugs on particular premises), as opposed to the preparation and giving of witness evidence about such matters.
“Summarising this part of the case: (i) the core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court; (ii) the core immunity also comprises statements of case and other documents placed before the court; (iii) that immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked; (iv) whether something is necessary is to be decided by reference to what is practically necessary; (v) where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial inquiry, there is no necessity to extend the immunity; (vi) in such cases the principle that a wrong should not be without a remedy prevails.”
-
- With that by way of a review of the authorities about the witness immunity rule, I turn to the circumstances of the present case. As regards the claim for false imprisonment against the Defendant, which is in essence that she maliciously procured the Claimant’s arrest and detention by the police, the statements by her to the police which are relied on by the Claimant are within the ambit of the immunity rule, as decided in Westcott v Westcott. That is a binding decision to that effect. However, the cause of action in that case was defamation. The question is whether it makes a difference that, in the present case, the claim is for malicious procurement of arrest. For the Claimant Mr Wilson Q.C. contends that the case is within the precedent set by Roy v Prior and therefore is not barred by the immunity rule.
-
- Although the claim is expressed to be for false imprisonment (and, as against the police, was properly so framed) it is important to draw a distinction between that cause of action, and that which is asserted in this respect against the Defendant. False imprisonment requires no more than an allegation that the claimant was imprisoned, and by the defendant. It is then for the defendant to show, if the imprisonment is admitted or proved, that it was done with lawful authority. If it was so done, then the claim fails; if not the claim succeeds. No issue arises as to motive or state of mind, other than, for example, as to reasonable or probable cause if the lawfulness of the detention depends on that. The claim against the police in the present case was settled, we are told, on the basis of an acceptance by the police of one unlawful arrest, namely the first, under the 2003 order. That is logical.
-
- The claim against the Defendant in this respect is of a different order. It was not she who detained the Claimant. The claim is analogous to that advanced in Roy v Prior, where the plaintiff had been lawfully arrested under the bench warrant. The defendant in that case was alleged to have procured the issue of the bench warrant, and therefore the arrest of the plaintiff, maliciously and without reasonable cause. So here, whether or not the arrest by the police was lawful, the Claimant alleges that the Defendant procured the arrest maliciously and without reasonable cause.
-
- The claim recognised in Roy v Prior is one variant of a number of causes of action concerned with the abuse of the process of the court. Malicious prosecution is the best known. For this the claimant must show that he was prosecuted by the defendant, that the prosecution failed, that it was brought or continued without reasonable cause and that it was done maliciously. In general the prosecution has to be for a criminal charge, though the Privy Council has recently held (by a majority) that the malicious prosecution of civil proceedings is also tortious: Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366, [2013] UKPC 17. In their review of the law in that case the Justices of the Supreme Court referred to a miscellaneous group of cases in which claims akin to malicious prosecution in civil cases had been recognised: see Lord Wilson JSC at paragraph 67 and Lord Sumption JSC at paragraph 143. These include the malicious presentation of a bankruptcy petition or a winding-up petition, the malicious procurement of a bench warrant (Roy v Prior) or other warrant of arrest or a search warrant. Lord Sumption (in the minority) described these, at paragraph 143, as a “small and anomalous class of civil cases in which an action has been held to lie for maliciously procuring an order of the court”. In all of these cases a court process has been involved, whether by the making of a court order, as in Roy v Prior, or at least by the initiation of proceedings, as in the presentation of a bankruptcy or winding-up petition.
“To put into force the process of the law maliciously and without any reasonable or probable cause is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action on the case. Process of execution on a judgment seeking to obtain satisfaction for the sum recovered is primâ facie lawful; and the creditor cannot be rendered liable to an action, the debtor merely alleging and proving that the judgment had been partly satisfied and that execution was sued out for a larger sum than remained due upon the judgment. Without malice and the want of probable cause, the only remedy for the judgment debtor is to apply to the Court or a Judge that he may be discharged, and that satisfaction may be entered up on payment of the balance justly due. But it would not be creditable to our jurisprudence if the debtor had no remedy by action where his person or his goods have been taken in execution for a larger sum than remained due on the judgment, this having been done by the creditor maliciously and without reasonable or probable cause: i.e. the creditor well knowing that the sum for which execution is sued out is excessive, and his motive being to oppress and injure the debtor. The Court or Judge, to whom a summary application is made for the debtor’s liberation, can give no redress beyond putting an end to the process of execution on payment of the sum due, although, by the excess, the debtor may have suffered long imprisonment and have been utterly ruined in his circumstances.”
-
- In each case where liability has been recognised, the processes of the court have been invoked, either by (or, as in Roy v Prior, by an application in the course of) a criminal prosecution or by civil proceedings. Leaving aside the newly recognised tort of maliciously bringing civil proceedings, the instances in the cases have involved obtaining court orders for the arrest of the plaintiff, for example under a writ of capias ad satisfaciendum for non-payment of a debt (Gilding v Eyre (1861) 10 CBNS 592), or for the arrest of a ship (The Walter D Wallet [1893] P 202) or of other assets of the plaintiff (Clissold v Cratchley [1910] 2 KB 244, and The Nicholas M [2009] 1 All ER (Comm) 479) or a search warrant (Gibbs v Rea [1998] AC 786). In all of these cases, and also in Johnson v Emerson (1871) LR 6 Ex 329, where the allegation was of maliciously initiating bankruptcy proceedings and procuring the adjudication of the plaintiff as bankrupt, action on the part of the court was involved, for which, evidently, the court could not be made liable. In Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 the wrongful act alleged was maliciously presenting a winding-up petition. That was held to be sufficient, in that the effect of presentation of such a petition was immediately damaging to the company which was the subject of the petition. In that case, therefore, the court was not involved other than in receiving and processing the petition when presented for issue. In none of these cases could there be a claim against the court for compensation for loss suffered.
-
- In the present case, no court process was involved at any stage. The Defendant’s complaint to the police is within the scope of the immunity rule because it was the first step in a process that might have involved the criminal justice system, just as was the complaint in Westcott v Westcott. It is clear that no action in defamation would lie against the Defendant in respect of her complaint to the police. But Mr Wilson’s argument, for the Claimant, is that the same is not true of the claim analogous (he says) to Roy v Prior of malicious procurement of arrest.
-
- For the Defendant Mr Speker submitted that the absence of any court process at any stage makes all the difference. His contention was that this group of torts, to which the witness immunity does not apply, as held in Roy v Prior, are all concerned with the malicious use or manipulation of the process of the court, whether criminal or civil. The essence of them is abuse of the process of the court. He therefore argued that, if no court process is involved at any stage, then the case does not fall within this category and there is no reason for it to fall outside the scope of the witness immunity rule.
-
- To the contrary, Mr Wilson argued that the essence is abuse of the processes of the law, and that there should be no good reason to distinguish between the case of a defendant who maliciously procures the police to arrest the claimant where no prosecution follows, and a case where a prosecution has already been brought or is later commenced. It might be said to be anomalous to allow the witness immunity rule to apply where the complaint leads to an arrest but no prosecution follows, and not to allow it to apply if a prosecution does follow, with or without an arrest.
-
- As it seems to me, there is a significant difference between a case where what happens is that the claimant is arrested by the police on the basis of information provided by the defendant, but no prosecution follows, and a case where criminal or civil proceedings are brought, in the case of criminal proceedings being based on information provided by the defendant and, in the case of civil proceedings, being brought by the defendant. If the interference with the claimant’s liberty or his assets is the result of a court order of some kind (arrest under a bench warrant or some form of execution) or is the effect of the issue of proceedings (as in the case of an insolvency petition), there can be no remedy by way of compensation to the claimant by recourse to the court which made the order. The order may be set aside, but that will not undo loss already caused. Accordingly, it is right that there should be a distinct remedy, if the necessary elements can be proved, against the person who invoked the court procedure.
-
- By contrast, if the defendant is said to have procured the arrest of the claimant by the police without any prosecution following, then in principle the police, being responsible for the arrest, may themselves be liable to the claimant for the fact and consequences of the arrest. Moreover, now that the decision whether or not to prosecute is not for the police but for the Crown Prosecution Service, there will be an independent consideration of the circumstances before any decision to prosecute is taken. (I disregard cases of private prosecution, but they are not likely to have been preceded by an arrest.)
-
- That seems to me to make a difference which is significant in the present context. If proceedings are commenced, and if the events complained of either lead to those proceedings or occur in the course of the proceedings, so that the court process is abused, then it is appropriate for the tort of malicious prosecution, or a related tort based on malicious abuse of the process of the court, to be available so as to afford the claimant a remedy, and it is justifiable that such a claim should not be defeated or precluded by the witness immunity rule. If, however, there are no court proceedings, the claimant’s arrest not being preceded or followed by any proceedings, whether criminal or civil, then there is no question of an abuse of the process of the court, no reason why (if the relevant facts can be proved) the person responsible for the arrest should not be answerable for the imprisonment, and correspondingly no reason to treat a claim for compensation for the arrest as one to which the otherwise general witness immunity rule does not apply.
-
- I bear well in mind the comments of judges, some of which I have already quoted, that the scope of the immunity rule must be limited to that which is necessary in the interests of the administration of justice. I also bear in mind Lewison LJ’s comment that it is dangerous to generalise in this area. However, it does seem to me that, in this particular contested zone, part of Lord Hoffmann’s disputed ground, both principle and policy support the distinction that I have drawn, between, on the one hand, a case where what is complained of is or involves the invocation of the process of the court, where a claim for, or akin to, malicious prosecution may be brought against the person who invoked the court process, and where the witness immunity rule does not prevent the claim being brought even though it may rely in part on statements which would be immune from a claim in defamation, and, on the other hand, a claim in circumstances where no court proceedings have taken place, so that no issue arises of a claim based on the malicious abuse of the process of the court. In such a case I see no reason to make an exception from the normal scope of the witness immunity rule. It would preclude a claim in defamation; it should also, in my judgment, preclude a claim of the kind brought by the Claimant in the present case. The policy behind the witness immunity rule is the same in relation to the present claim as it would be as regards a defamation claim, and the case does not have the feature of abuse of the process of the court which, because no claim can be made against the court, justifies the possibility of a separate claim for the malicious abuse of the court’s process, which should be possible despite the witness immunity rule.
Harassment
-
- The necessary elements of the cause of action afforded by section 3 of the 1997 Act are those defined by section 1. (I will ignore in these citations any text which is not relevant to the present case.) According to section 1(1) a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. Section 1(2) provides that the person whose course of conduct is in question ought to know that it amounts to harassment if a reasonable person in possession of the same information would think that it did amount to harassment of the other person. There are some qualifications in section 1(3) so that the section does not apply to a course of conduct if the person who pursued it shows one of three things, two of which are relevant. Paragraph (a) applies if the course of conduct was pursued for the purpose of preventing or detecting crime. Paragraph (c) covers the case where in the particular circumstances the pursuit of the course of conduct was reasonable.
-
- Thus the first thing which must be alleged and proved is a course of conduct which, of its nature, must consist of conduct on at least two occasions: see section 7(3). For the Defendant Mr Speker submitted that a statement which is subject to the immunity rule, so that it cannot be sued on in defamation, cannot be used as part of a course of conduct for the purposes of the 1997 Act either, as regards a civil remedy. The judge below accepted that submission.
-
- Mr Wilson submitted that this is not correct. He argued that what has to be proved in this instance is a course of conduct and that, although it would of course be right to plead particulars of the course of conduct, which may include statements as regards which the maker would be immune from a defamation action, nevertheless these are no more than the evidence by which the course of conduct is established, and that the claim is therefore not brought on the statements themselves. Accordingly he submitted that this is a situation which is outside the scope and the policy of the immunity rule.
-
- Shortly after we had heard argument on the appeal, judgment was delivered by His Honour Judge Richard Seymour Q.C., sitting in the Queen’s Bench Division, in the case of Halcyon House Ltd v Baines and others [2014] EWHC 2216 (QB). One of the two claims which the judge had to determine in that case was brought under the 1997 Act. He had submissions about the interaction of the witness immunity rule and liability under the 1997 Act. Counsel drew the decision to our attention and presented written submissions about it.
-
- In that case the judge found that there was only one act which could have amounted to harassment, and since there had to be at least two to amount to a course of conduct he dismissed the claim under the Act. But he did deal with submissions that had been made to him about the witness immunity rule, because the one act that could have been relevant was what he held to be the malicious making of a complaint to the police, which resulted in an arrest but no prosecution.
-
- He said that he would not have regarded the witness immunity rule as applying to a civil action under the 1997 Act, principally because the action is not based on the particular statement but on the fact of making a complaint to the police in the course of conduct amounting to harassment. He also said that, if that were wrong, he would come to the same conclusion because the inclusion of the express provision in section 1(3)(a) made it clear that that was to be the limit of any defence of that kind to the claim.
-
- Mr Wilson relied on these observations, albeit obiter, in support of his arguments already presented to the court. Mr Speker submitted that both of the judge’s reasons were wrong. As for the first, he argued that, in substance, what is relied on as the course of conduct in the present case (apart from the initial two text messages, to which I will come below) is the complaint to the police, albeit that it went through three stages. He submitted that it would be artificial to divide it up into these three stages (occurring over a short time) in order to make it seem a course of conduct. He also contended that there is no good reason to suppose that section 1(3)(a) sets out the whole of the circumstances in which an equivalent of witness immunity can apply under the 1997 Act. A course of conduct which could be justified under section 1(3)(a) might well not be limited to the making of statements. It might include surveillance of various kinds which, in other circumstances, could well be regarded as harassment.
-
- I do not accept the validity of the distinction which Mr Wilson sought to draw in his oral submissions between the statements alleged and relied on, on the one hand, and the course of conduct on the other. To the extent that the course of conduct alleged consists of the making of statements, then it seems to me that the claim is based on those statements. Here the Claimant properly gave particulars in paragraph 76 of the Amended Particulars of Claim of the course of conduct alleged. The statements to the police were three of the five acts on the Defendant’s part which are so alleged. For the same reason I would not accept the first reason given by Judge Seymour for the conclusion that he would have come to, if there had been more than one relevant act, that the complaint to the police was not protected by the witness immunity rule. It seems to me that it would be inconsistent with the policy of the witness immunity rule to draw such a distinction as regards a course of conduct alleged under the 1997 Act, so far as it consists of or includes statements which would be within the rule in the case of a defamation claim, so that the rule would not apply to such an allegation whereas it would apply to a defamation claim based on the same statements.
-
- I would also not accept the judge’s second reason. It seems to me that Mr Speker is right to point out that section 1(3)(a) is not limited to statements, and that therefore it cannot only be explained as an implicit statutory substitute for the witness immunity rule. I see no reason to suppose that the witness immunity rule does not apply to the full in relation to claims under the 1997 Act.
-
- It seems to me that the policy of the immunity rule applies just as much to a claim in harassment based on such a statement as it does to a claim in defamation. In my judgment Judge Baucher was right to hold that the harassment claim could not be brought on the basis of the complaint to the police or the statements made in support of that complaint. Paragraphs (c) to (e) of the particulars of harassment given in paragraph 76 of the Amended Particulars of Claim must be ignored.
-
- That leaves the two text messages, set out above. In her second judgment the judge held that no claim for harassment could possibly succeed if based only on those two text messages. She said that although the two text messages were close in time and related to the same incident, they could possibly be capable of amounting to a course of conduct. Arguably, therefore, they were “conduct on at least two occasions”. She did not then go on to ask whether the two messages were capable of amounting to harassment of the Claimant. Instead she considered whether the Defendant would be able to show that, in the particular circumstances, to send the two text messages was reasonable. If it was clear that this would be shown, then the claim in harassment based only on the two text messages could not succeed. She held that it was self-evidently reasonable.
-
- Mr Wilson submitted that it was not open to the judge to come to that conclusion without considering fully the context in which the text messages were sent, and that this would require evidence to be heard and tested. I see some force in that argument, insofar as it invokes the history of the relations between the parties, although it does seem somewhat unreal in relation to a course of conduct which, as alleged, would consist of no more than the two text messages themselves.
-
- Nevertheless, it seems to me that the judge’s reasoning also leads to the conclusion, which I would reach, for myself, simply from a reading of the two messages, that, even if the two text messages might constitute a course of conduct, they cannot be held to amount to harassment. Their language is simply not capable of being seen as harassment. There is no statutory definition of harassment; section 7(2) states that references to harassing a person include alarming the person or causing the person distress, but that is merely inclusive. In Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, [2002] EMLR 4, at paragraph 30 Lord Phillips MR said that harassment was “a word which has a meaning which is generally understood” and that it described “conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable”. Informed by this observation and later cases under the Act, Simon J in Dowson v Chief Constable of Northumbria [2010] EWHC 2612 set out the following summary of the law:
“142. I turn then to a summary of what must be proved as a matter of law in order for the claim in harassment to succeed.
(1) There must be conduct which occurs on at least two occasions,
(2) which is targeted at the claimant,
(3) which is calculated in an objective sense to cause alarm or distress, and
(4) which is objectively judged to be oppressive and unacceptable.
(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.
(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.”
-
- I do not take that as definitive, but it seems to me that it is a helpful guide to the issues that arise. Looked at in that context, it seems to me that it would not be possible to hold that the two text messages constitute harassment, even on the assumption that they amount to a course of conduct by themselves. I do not see that they can be categorised as, objectively, likely to cause alarm or distress, or that they could be judged, in the context of the long-running dispute between these parties and the existence of the indefinite restraining order, as oppressive or unacceptable.
Conclusion
Lady Justice Sharp
Lord Justice Beatson
Gregory v. Portsmouth City Council
[2000] UKHL 3
LORD BROWNE-WILKINSON
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. I agree with it and for the reasons which he gives I would dismiss the appeal.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he gives I too would dismiss this appeal.
LORD STEYN
My Lords,
On this appeal the question is whether the tort of malicious prosecution is in law capable of extending to the malicious institution of domestic disciplinary proceedings by a local authority against a councillor.
The Disciplinary Proceedings
In 1983 Mr. Gregory was elected a Conservative member of the Portsmouth City Council. He had earlier been employed by an estate agent. Complaints were received by the Council that while various matters affecting local properties were before committees of the Council, Mr. Gregory was involved directly or indirectly in dealings in the properties. The allegation was that Mr. Gregory had abused his position as a councillor by using confidential knowledge gained as a councillor for his personal advantage. In 1988 the Administrative Sub-Committee of the Council’s Policy and Resources Committee investigated allegations that Mr. Gregory had acted in breach of the National Code of Local Government Conduct which the Council had adopted. Mr. Gregory disputed the allegation. The Administrative Sub-Committee found some of the allegations proved and recommended that Mr. Gregory be removed from various committees of which he was a member, and that he be suspended from membership of the committees for the remainder of his term as councillor. The Administrative Sub-Committee appointed a Special Committee to approve, reject, vary or amend the recommendations of the Administrative Sub-Committee. After hearing evidence the Special Committee found a number of breaches of the Code proved. On 30 December 1988 the Special Committee ordered that Mr. Gregory be removed from the committees of which he was a member. These events were widely reported in the newspapers.
The Divisional Court proceedings
In March 1988 Mr. Gregory applied for Judicial Review. The Divisional Court (Mann L.J. and Brooke J.) quashed the decision in the disciplinary proceedings. The grounds upon the Divisional Court acted were:
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- 1) The Administrative Sub-Committee had acted
ultra vires
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- when it made its findings and recommendations. The Council had placed the matter for determination before the wrong committee.
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- 2) The proceedings of the Special Committee were null and void because it was convened on the premise that the recommendations of the Administrative Sub-Committee were lawful and they were not.
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- 3) The membership of the Special Committee was unfairly constituted because it included a councillor who had already expressed the view that Mr. Gregory was guilty.
A detailed narrative is contained in the judgment of the Divisional Court: Reg. v. Portsmouth City Council, Ex parte Gregory [1990] 2 Admin. L.R 681.
In 1990 the Council resolved to institute the same disciplinary proceedings before another tribunal. The resolution was reported in newspapers. In July 1991 the Council decided to abandon the proceedings. In the meantime Mr. Gregory had ceased to be a councillor. The decision to abandon the proceedings was taken against the background of the fact that in May 1990 Mr. Gregory was convicted of two counts involving dishonesty for which he was sentenced to three months imprisonment for two years on concurrent on each count. These offences were in respect of over-claiming expenses as a councillor and were unrelated to the disciplinary proceedings.
The claim for damages for malicious prosecution
On 4 March 1992 Mr. Gregory issued a writ claiming damages for malicious prosecution against the Council. The essential flavour of his case is conveyed by three allegations in the Statement of Claim. First, he alleged that there was no or insufficient evidence to justify the bringing of the disciplinary proceedings against him. Secondly, he alleged that the proceedings were motivated by political considerations, pursued by a combination of his political opponents and unscrupulous office seekers in his own party. Thirdly, he alleged that the Council knew that the proceedings could not lawfully be heard by the Administrative Sub-Committee. The pleaded Particulars of General Damage were as follows:
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- “1) The Plaintiff has suffered very substantial loss of reputation and he and his family have suffered very considerable strain.
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- 2) He has been subjected to offensive and hurtful remarks in social and other situations.
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- 3) He lost his seat as a Councillor. Before that, he was barred from attending Council functions and was struck off the list of official candidates, meaning he had to stand as an independent unofficial candidate which put him to considerable expense which would otherwise have been born by his party.
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- 4) He and his family have all been variously subjected to gratuitous abuse in one form or another and this has greatly distressed the Plaintiff.”
The pleaded Particulars of Special Damages were as follows:
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- “Legal costs, particulars of which have been delivered: £2,000
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- Personal expenses £150.00.”
The Plaintiff further asserted damage to his employment prospects. He claimed aggravated and/or exemplary damages. It is important to note that the plaintiff’s claim is for financial loss as well as injury to his reputation and feelings. The Council served a defence. By a Summons dated 14 May 1992 the Council applied for an order that the claim be struck out under R.S.C. Ord. 18, r. 19(1)(a), on the basis that it disclosed no reasonable cause of action.
On 13 October 1992 the matter came before District Judge Naylor for hearing. He ordered the claim to be struck out. Mr. Gregory appealed to the judge in chambers. Tudor Evans J. heard the appeal at Winchester on 30 April 1993. In a reserved judgment, given on 27 May 1993, the judge held that the tort of malicious prosecution is confined to criminal proceedings and certain specific types of civil proceedings. He held that internal disciplinary proceedings fell beyond the limits of the tort. The judge dismissed the appeal but granted leave to appeal to the Court of Appeal.
Mr. Gregory appealed to the Court of Appeal. By agreement the Court of Appeal dealt with the case as a preliminary issue arising under Ord. 33, r. 3. On 5 November 1997 by a majority (Simon Brown and Walker L.JJ.) the Court of Appeal dismissed the appeal: Gregory v. Portsmouth City Council (1997) 96 LGR 569. Schiemann L.J. dissented. Simon Brown L.J. gave the leading judgment. He pointed out that on existing authority most but not all criminal proceedings, and certain specific civil processes, will ground the tort. He rejected an argument that the law should be developed beyonds these categories to extend the tort to disciplinary proceedings. He concluded, at p. 578:
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- “. . . that the tort of malicious prosecution probably does not extend beyond the already established categories of civil and criminal proceedings, and certainly not as far as the proceedings of bodies like the council who are not merely not courts of law but are not even tribunals exercising functions equivalent to courts. One can perhaps see a public policy argument for extending the tort to embrace proceedings in the latter, covered as they are by absolute immunity. But I am by no means persuaded even of that, let alone of the desirability of a further extension still to cover this case.”
In a separate judgment Robert Walker L.J. expressed agreement with the reasons of Simon Brown L.J. He too accepted that the present boundaries of the tort of malicious prosecution are not easy to justify. He said that the proposed extension is likely to lead to numerous practical difficulties, and was a matter for Parliament: at p. 595. In an important and valuable judgment Schiemann L.J. saw the matter differently. He observed [p. 593]:
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- “Such rationale as there was for the various fine distinctions which we find in this branch of the law sprang from history and historical circumstances which no longer appertain. I see no advantage in retaining them. It is a commonplace of legal history that a rule is established for perfectly sensible reasons and yet is adhered to for years after the underlying reasons no longer apply.
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- “. . . While of course I accept that the common law judge will look at how the law has developed from its origins, I myself find the concept of ‘true scope’ of a particular tort conceptually unhelpful in the sort of exercise upon which the court is currently engaged. As I have indicated, I prefer to start from the other end, as it were. In my judgment if the facts are as pleaded in the statement of claim it is consonant with the general approach of our law as it now stands that the plaintiff has a remedy. I can see no policy reason for not giving him one. . . . I prefer to be guided by principle than by dicta echoing down the generations.”
These contrasting observations capture in some measure the essentials of the debate on the present appeal before the House.
The issues
In the Statement of Facts and Issues the questions arising for decision were formulated as follows:
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- “1) Do the following agreed and assumed facts give rise to a cause of action in malicious prosecution, namely:
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- i) the agreed fact that disciplinary proceedings were instituted by a local authority against Mr. Gregory, a councillor; and
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- ii) the assumed facts that the proceedings were instituted maliciously and without reasonable and proper cause, and that Mr. Gregory thereby suffered loss of reputation, injury to health, mental anguish and legal costs?
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- 2) Is there a general tort of maliciously instituted civil proceedings?
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- 3) Does the tort of malicious prosecution extend to the malicious institution of domestic disciplinary proceedings by a local authority against a councillor?
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While he contended that in principle the tort of malicious prosecution should extend to all civil proceedings, counsel for Mr. Gregory submitted that even if this was not accepted, nevertheless the tort should extend to disciplinary proceedings on the ground that such proceedings are quasi criminal. Counsel invited your Lordships to develop the law in this way in the present case.
The law as it stands
The paradigm is the tort of malicious prosecution of criminal proceedings. A distinctive feature of the tort is that the defendant has abused the coercive powers of the state. The law recognises that an official or private individual, who without justification sets in motion the criminal law against a defendant, is likely to cause serious injury to the victim. It will typically involve suffering for the victim and his family as well as damage to the reputation and credit of the victim. On the other hand, in a democracy, which upholds the rule of law, it is a delicate matter to allow actions to be brought in respect of the regular processes of the law. Law enforcement agencies are heavily dependent on the assistance and co-operation of citizens in the enforcement of the law. The fear is that a widely drawn tort will discourage law enforcement: it may discourage not only malicious persons but honest citizens who would otherwise carry out their civic duties of reporting crime. In the result malevolent individuals must receive protection so that responsible citizens may have it in respect of the hazards of litigation. The tort of malicious prosecution is also defined against the backcloth that there are criminal sanctions, such as perjury, making false statements to the police, and wasting police time, which discourage the mischief under consideration. Moreover, the tort must be seen in the context of overlapping torts, such as defamation and malicious falsehood, which serve to protect interests of personality.
The enquiry must proceed from the premise of the law as it stands. The tort of malicious prosecution is narrowly defined. Telling lies about a defendant is not by itself tortious: Hargreaves v. Bretherton [1959] 1 Q.B. 45. A moment’s reflection will show what welter of undesirable re-litigation would be permitted by any different rule. To ground a claim for malicious prosecution a plaintiff must prove (1) that the law was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause, and (4) that it was malicious: Martin v. Watson [1996] 1 A.C. 74, 80. Damage is a necessary ingredient of the tort. This element of the tort was explained in a dictum of Holt C.J. in Savill v. Roberts (1698) 12 Mod. Rep. 208. Holt C.J. defined the interests protected by the tort as follows:
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- “there are three sorts of damages, any one of which is sufficient to support this action. First, damage to [the plaintiff’s] fame, if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses.”
The result of this test of damages is that most, but not all, criminal proceedings are capable of satisfying the requirements of the tort. For example, it has been held that a conviction for pulling a communication cord on a train without reasonable cause does not damage the “fair name” of the person charged: Berry v. British Transport Commission [1962] 1 Q.B. 306.
In English law the tort of malicious proceedings is not at present generally available in respect of civil proceedings. It has only been admitted in a civil context a few special cases of abuse of legal process. Sometimes these cases are described as constituting a separate tort of abuse, but in my view Fleming, The Law of Torts, 9th ed. (1998), p. 687 is correct in observing that they “resemble the parent action too much to warrant separate treatment.” The most important is malicious presentation of a winding up order or petition in bankruptcy: Johnson v. Emerson (1871) L.R. 6 Ex. 674; Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 QBD 674. In Quartz Brett L.J. justified the rationale of this special case on the ground that the defendant is “injured before he can show that the accusation made against him is false; he is injured in his fair name, even though he does not suffer a pecuniary loss”: at 684. He drew a contrast: “it is not like an action charging a merchant with fraud, where the evil done by bringing the action is remedied at the same time that the mischief is published, namely at trial”: at 684-685. It has long been recognised to be an actionable wrong to procure the issue of a search warrant without reasonable cause and with malice: Gibbs v. Rea [1998] AC 786. In Roy v. Prior [1971] A.C. 470 the House of Lords allowed an action by a plaintiff to proceed where the plaintiff alleged that the obtaining ex parte of a bench warrant, and his arrest, was an abuse of process inasmuch as the solicitor responsible acted without reasonable cause and maliciously. An action in tort will also be available for setting in train execution against property without reasonable cause and maliciously: Clissold v. Cratchley [1910] 2 KB 244. These instances may at first glance appear disparate but in a broad sense there is a common feature, namely the initial ex parte abuse of legal process with arguably immediate and perhaps irreversible damage to the reputation of the victim. There is another instance of a recognised head of actionable abuse of process, namely the malicious arrest of a ship: The Walter D Waller [1893] P 202. In such a case the loss is merely financial. Moreover, the arrest can be lifted almost immediately upon giving of security for the claim. Such claims are a rarity. The traditional explanation for not extending the tort to civil proceedings generally is that in a civil case there is no damage: the fair name of the defendant is protected by the trial and judgment of the court. The theory that even a wholly unwarranted allegation of fraud in a civil case can be remedied entirely at trial may have had some validity in Victorian times when there was little publicity before the trial: see Little v. Law Institute of Victoria [1990] V.R. 257. However realistic this view may have been in its own time, it is no longer plausible. In modern times wide dissemination in the media of allegations in litigation deprive this particular reason for a restricting the tort to a closed category of special cases of the support of logic or good sense. It is, however, a matter for consideration whether the restriction upon the availability of the tort in respect of civil proceedings may be justified for other reasons.
In English law the tort of malicious prosecution has never been held to be available beyond the limits of criminal proceedings and special instances of abuse of civil legal process. Specifically, it has never been extended to disciplinary proceedings of any kind. On the contrary, it has been stated by the House of Lords that this tort does not extend to disciplinary proceedings. The point arose in Calveley v. Chief Constable of the Merseyside Police [1989] A.C. 1228. The House held that there was no common law duty of care owed by a chief constable to a police officer who was the subject of disciplinary proceedings. Lord Bridge of Harwich, speaking for a unanimous House, observed: “Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation”: at 1238F. In other words, Lord Bridge observed that since the tort of malicious prosecution is unavailable it follows a fortiori that in action in negligence does not lie. Having mentioned the Calveley case, which was not cited in argument, I entirely accept that on this appeal the correctness of the observation by Lord Bridge must be considered.
The argument for a development of the law.
Counsel submitted that the existing boundaries of the tort fail a test of rationality. He adopted the following passage in Salmond and Heuston on the Law of Torts, 21st ed. (1996), p. 393:
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- “. . . there seems to be no reason why an action should not lie for the institution of unfounded and malicious proceedings before a court-martial, or some administrative or domestic tribunal. The adverse decision of such a body may cause serious damage to the reputation or livelihood of the party accused.”
Counsel also cited other academic criticism of the existing law: see Fleming, The Law of Torts, pp. 675-676; Winfield and Jolowicz on Tort, 14th ed. (1994), pp. 581-582. He argued that it would be better not to concentrate on types of proceedings in which groundless allegations are made but rather on the fact of malicious and unwarranted abuse of any proceedings resulting in serious damage to an individual. In support of the feasibility of such a development he drew attention to the development of the tort of malicious prosecution in the United States as described in The American Law Institute, Restatement of the Law, Torts, 2d (1977). Section 674 extends the tort to all civil proceedings. It reads as follows:
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- “One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if
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- “(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and
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- “(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.”
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Section 680 extends the tort to proceedings before administrative boards. It reads as follows:
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- “One who takes an active part in the initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if
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- “(a) he acts without probable cause to believe that the charge or claim on which the proceedings are based may be well founded, and primarily for a purpose other than that of securing appropriate action by the board, and
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- “(b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.
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He cited a decision in a United States state court as an example of the extended application of the tort: DeLaurentis v. City of New Haven (1991) 597 A 2d 807 (Conv. 1991). In the DeLaurentis case a former official in charge of municipal parking against whom disciplinary proceedings were brought and subsequently abandoned was held to be entitled sue for malicious prosecution of the disciplinary proceedings. The court observed that section 680 of the Restatement (Second) is now accepted by most courts in the United States: at 819. see also Melvin v. Pence (1942) 130F. 2d 323; Donovan v. Barnes (1976) 274 Or. 701. Counsel invited your Lordships to develop English law along these lines.
The Restatements are prestigious and influential publications which are often cited by appellate courts throughout the Commonwealth. As recently as 1995 the House relied on The Restatement of the Law, Torts, 2d (1997) in regard to the tort of malicious prosecution: Martin v. Watson, supra, at 84E-H. For my part the citations from the Restatement on the present appeal must be accorded considerable weight. On balance though it seems realistic to take into account that the difference in the in the way in which the tort of malicious prosecution has developed in the United States and England is to a considerable extent the result of structural differences between the two legal systems. In England the award of costs in the discretion of the court is an important weapon in deterring groundless actions. But in the United States there is no such general judicial power. By the beginning of the nineteenth century “costs had ceased to perform the function for which they had been designed – deterring false suits – and the inherited system collapsed.”: William C Campbell, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 1979, Vol. 88. The Yale L.J. 1218 at 1229. The fact that Courts in the United States do not have a general power to award costs against a plaintiff who has brought a groundless claim is a significant difference. In the United States the absence of a general judicial power to award costs in respect of a groundless claim apparently played a part in the development and extension of the tort of malicious prosecution to all civil proceedings: Neil Gold, Controlling Procedural Abuses: The Role of Costs and Inherent Judicial Authority, 1977, 9:44 Ottawa L.R. 44; William C. Campbell, ibid. And that was the springboard for the extension of the tort to administrative tribunals. In these circumstances the development in the United States, while undoubtedly relevant to the issue before the House, must be seen in the light of two legal systems which in material respects diverge. It does not necessarily follow, however, that a similar development is not justified in the context of the particular circumstances and needs of our legal system. That question still remains to be considered.
The respondent’s argument of symmetry
Counsel for the respondent produced what he described as a decisive argument against the proposed development of the tort. He argued that the tort of malicious prosecution is not available where the absolute privilege or immunity which characterises legal proceedings is absent. He appeared to argue that without absolute privilege being first established no further development of the limits of tort is possible. I entirely accept that a coherent development of the law, taking into account the limits of the tort of malicious prosecution as well as the recognised categories of immunity, is desirable. But this is not a knock-down argument. One development may follow the other. In any event, as Simon Brown L.J. pointed out, the immunity has been extended to tribunals exercising functions equivalent to courts of law: see O’Connor v. Waldron [1935] AC 76, 81; Addis v. Crocker [1961] Q.B. 11. In my view the argument of symmetry is a relevant but far from decisive factor against the development suggested in this case.
The argument that disciplinary proceedings are quasi criminal
It is now opportune to turn directly to the principal submission of counsel for Mr. Gregory. He argued that disciplinary proceedings are quasi criminal in concept and involve severe penalties affecting the lives and livelihoods of individuals. Accordingly, he argued, even if the tort is not extended to all civil proceedings, it should be extended to disciplinary proceedings. When the argument was tested he accepted that the submission was too broad. He acknowledged that there are disciplinary proceedings which by reason of their informality should fall outside the scope of the tort, e.g. a disciplinary committee of a tennis club. A problem of classification therefore arises. There is a great diversity of statutory and extra-statutory disciplinary proceedings: see a comparative survey in Harris, Law and Practice of Disciplinary and Regulatory Proceedings, 2nd ed., (1999) Appendix G, pp. 490-540. At the one end of the spectrum one has the formalised procedures of the Professional Conduct Committee of the General Medical Council, which are subject to an appeal to the Privy Council, and the Solicitors’ Disciplinary Tribunal, which are subject to an appeal to the Divisional Court or the Master of the Rolls depending on the case. At the other end one has the informal procedures of social and sports clubs. The purpose of the proceedings also vary. The purpose of disciplinary proceedings is sometimes quasi criminal, e.g. against a professional man on the ground that he has cheated his client. Sometimes the purpose is simply the protection of the public, e.g. an adjudication of a Health Committee of the General Medical Council on an issue as to whether a doctor is mentally fit to practise medicine. And often both purposes are present. Against this diverse background the solution of leaving it to the courts to decide on a case-by-case basis what disciplinary proceedings may ground the tort may plunge this area of the law into uncertainty.
Given that the tort has never in England been held to extend beyond legal proceedings the proposed development would be a radical reform. Moreover, it is significant that, counsel have been unable to find any decided cases in Australia, Canada, and New Zealand which extend the tort to disciplinary proceedings. While the modern tort books published in these countries almost universally criticise the rule, or apparent rule, precluding actions for malicious prosecution in civil proceeding, there is no hint of any development of the boundaries of the tort beyond legal proceedings, or any call for such a development: see Fleming, The Law of Torts 9th ed., (1998), pp. 673-688; Balkin, Law of Torts, 2nd ed. (1996), pp. 709-723 (Australia); Klar, Tort Law, 2nd ed., (1996), pp. 55-61 (Canada); Todd, The Law of Torts in New Zealand, (1997), pp. 980-1002. The absence of such authority in Commonwealth countries with legal systems more akin to ours than the United States system may justify an initial scepticism as to the need and feasibility of such a reform.
Any extension of the tort of malicious prosecution would have to take account of a number of other torts which are capable, depending on the circumstances, of protecting the complex of interests of an individual damaged by disciplinary proceedings mounted without justification and maliciously. The first is the tort of defamation which serves to protect the reputation of individuals. In the case before the House there were publications which might have been the subject matter of an action for defamation. It is true that qualified privilege would be a defence to such a claim but that defence can be defeated by proof of malice. In cases of groundless disciplinary proceedings the victim’s main complaint will often be about the injury done to his reputation by the publicity given to the proceedings. This is therefore a relevant alternative remedy. The second tort to be considered is malicious falsehood. This tort is broader than defamation in the sense that recovery of damages is permitted even where there is no loss of reputation, e.g. where a defendant dishonestly tells the customers of the plaintiff that the plaintiff has ceased trading. Counsel for Mr. Gregory submitted that this was not an effective remedy for somebody like Mr. Gregory since recovery of damages for injury to reputation is not recoverable under this tort. And Mr. Gregory seeks damages for injury to his feelings and reputation. Since the hearing of the appeal in the House the Court of Appeal has held that aggravated damages are recoverable in an action for malicious falsehood: Khadaparast v. Shad., The Times 1 December 1999. While it is unnecessary to express a firm view on this decision in the present case it illustrates the potential of torts other than malicious prosecution to develop. The third tort is conspiracy. Having regard to the way in which the case has been pleaded this may have been an alternative remedy. But this tort does not allow for the recovery of injury to reputation or injury to feelings. It is primarily designed to provide for the recovery of financial loss: Lonrho Plc. v. Fayed (No. 5) [1993] 1 W.L.R. 1489. And losses of reputation are a major part of Mr. Gregory’s claim. There is force in counsel’s argument that it was not a realistic alternative. The fourth tort is misfeasance in public office. This tort involves an element of dishonest abuse of a public office: see Jones v. Swansea City Council [1990] 1 W.L.R. 1453 at 1458; Racz v. Home Secretary [1994] 2 A.C. 45; Bourgoin S.A. v. Ministry of Agriculture Fisheries and Food [1986] Q.B. 716, C.A. Mr. Gregory asserts that the council knew that they were acting beyond their power. It may have been a possible alternative remedy. But I prefer to express no view on the contours of this tort It is the subject matter of another appeal to the House and, in any event, it does not affect the disposal of the present appeal.
So far I have looked at the matter from the point of view of Mr. Gregory’s allegations. But a broader approach is required. One must consider the generality of cases of groundless disciplinary proceedings. For my part the existence of closely related torts, which protect individuals subjected to unwarranted and malicious proceedings disciplinary proceedings, destroys the simplistic case that there is no alternative remedy. Indeed, it makes it unnecessary and undesirable to make the extension of the tort malicious prosecution advocated by counsel. If the existing protection afforded to such victims by other torts is shown by the experience of the courts to be inadequate a better solution may be the development of other torts, such as the Court of Appeal undertook in Khadaparast v. Shad. For these reasons I would hold that the tort of malicious prosecution does not extend to disciplinary proceedings. This conclusion is reinforced by the observations of Lord Bridge of Harwich in the Calveley case.
The extension of the tort to civil proceedings
My Lords, it is not necessary for the disposal of the present appeal to express a view on the argument in favour of the extension of the tort to civil proceedings generally. It would, however, be unsatisfactory to leave this important issue in the air. I will, therefore, briefly state my conclusions on this aspect. There is a stronger case for an extension of the tort to civil legal proceeding than to disciplinary proceedings. Both criminal and civil legal proceedings are covered by the same immunity. And as I have explained with reference to the potential damage of publicity about a civil action alleging fraud, the traditional explanation namely that in the case of civil proceedings the poison and the antidote are presented simultaneously, is no longer plausible. Nevertheless, for essentially practical reasons I am not persuaded that the general extension of the tort to civil proceedings has been shown to be necessary if one takes into account the protection afforded by other related torts. I am tolerably confident that any manifest injustices arising from groundless and damaging civil proceedings are either already adequately protected under other torts or are capable of being addressed by any necessary and desirable extensions of other torts. Instead of embarking on a radical extension of the tort of malicious prosecution I would rely on the capacity of our tort law for pragmatic growth in response to true necessities demonstrated by experience.
Conclusion
My Lords, for these reasons I would dismiss the appeal.
LORD HOBHOUSE OF WOODBOROUGH
My Lords,
I agree that this appeal should be dismissed as proposed by my noble and learned friend Lord Steyn and for the reasons which he has given.
LORD MILLETT
My Lords,
I have the greatest difficulty in accepting the proposition that membership of a Committee or Sub-Committee of a local authority is a legally protected interest. This would, however, have been an unduly narrow ground on which to decide the important issues which arise in this appeal. I prefer to dismiss it for the reasons given by my noble and learned friend Lord Steyn, which I have had the advantage of reading in draft and with which I find myself in complete agreement.