[2006]
EWCA Civ 4
ADMINISTRATION OF JUSTICE; Other: CIVIL PROCEDURE
COURT OF APPEAL, CIVIL DIVISION
SIR
ANTHONY CLARKE MR, RIX AND MOORE-BICK LJJ
4 NOVEMBER
2005, 17 JANUARY 2006
Limitation of action – When time begins to run –
Contribution proceedings – Claim for contribution not made within two years of
judgment on liability but made within two years of judgment on quantum –
Whether claim statute-barred – Civil Liability (Contribution) Act 1978 –
Limitation Act 1980, s 10.
An employee of the claimant was badly injured when
his hand was trapped in machinery which had been supplied to the claimant and
installed by the defendants. The
employee commenced proceedings against the claimant and the defendants, and in
May 2001 obtained judgment by consent against the claimant for damages to be
assessed. His proceedings against the
defendants were thereafter discontinued.
He obtained judgment for quantum by an agreement embodied in a consent
order in October 2003. In February 2004
the claimant commenced its own action against the defendants, claiming
contributions or indemnities under the Civil Liability (Contribution) Act
1978. Section 10(1)a of the Limitation Act 1980 provided that a
claim for contribution under the 1978 Act was to have a limitation period of
two years. Under s 10(3) if the person
in question was held liable by ‘a judgment’ given in civil proceedings or by an
award in arbitration, the relevant date for limitation was the date on which
the judgment was given or the date of the award. The subsection continued: ‘For the purposes
of this subsection no account shall be taken of any judgment or award given or
made on appeal in so far as it varied the amount of damages awarded against the
person in question.’ Section 10(4)
provided that if, in any case not within s 10(3), the person in question made
or agreed to make any payment in compensation, the relevant date was the
earliest date on which the amount to be paid was agreed between him and the
person to whom payment was to be made.
The issue arose whether for the purposes of s 10 the judgment included a
judgment on liability only, in which case the claimant’s action was
statute-barred, or whether a judgment on quantum was required in order to start
time running. The judge decided that the
claim was statute-barred and the claimant appealed.
________________________________________
aSection 10 is set out
at [8], below
________________________________________
Held – The judgment or award referred to in s
10(3) of the 1980 Act as setting the relevant date for the running of time
against a tortfeasor who sought contribution under the 1978 Act was a judgment
or award which ascertained the quantum, and not merely the existence, of the
tortfeasor’s liability. The reference in
the subscript to s 10(3) to a judgment or award varying the amount of damages
suggested an underlying assumption that the judgment or award referred to
earlier in the subsection was a judgment or award which ascertained
damages. Section 10(4) suggested that
the critical matter was the ascertainment by agreement of the settlement sum
where there was no judgment or award but the claim was dealt with simply by
agreement. Parity therefore suggested
that where
290
the matter was dealt with by judgment or award the
critical matter was again the ascertainment of the quantum of liability. The special two-year time limit could be seen
as a compromise between the danger that a claimant in contribution would be
time barred even before he knew he was being sued by the person who had
suffered damage at his hands and the danger that the right of contribution
would have no limitation period at all or too extended a time period. Accordingly, the appeal would be allowed (see
[10], [11], [34], [35], [41]–[45], below).
George Wimpey & Co Ltd v British
Overseas Airways Corp [1954] 3 All ER 661, Littlewood v George Wimpey
& Co Ltd, British Overseas Airways Corp (second defendants
and third parties) [1953] 2 All ER 915 and Ronex Properties Ltd v John
Laing Construction Ltd (Clarke, Nicholls & Marcel (a firm),
third parties) [1982] 3 All ER 961 considered.
Notes
For when the right to contribution accrues, see 28 Halsbury’s
Laws (4th edn reissue) para 913.
For the Civil Liability (Contribution) Act 1978, see
13 Halsbury’s Statutes (4th edn) (2004 reissue) 733.
For the Limitation Act 1980, s 10, see 24 Halsbury’s
Statutes (4th edn) (2003 reissue) 944.
Cases referred to in judgments
Birse Construction
Ltd v Haiste Ltd (Watson and ors, third parties) [1996] 2 All ER 1,
[1996] 1 WLR 675, CA.
Bradley v Eagle Star
Insurance Co Ltd [1989] 1 All ER 961, [1989] AC 957, [1989] 2 WLR 568, HL.
Harvey v RG O’Dell
Ltd (Galway, third party) [1958] 1 All ER 657, [1958] 2 QB 78.
Knight v Rochdale
Healthcare NHS Trust [2003] EWHC 1831 (QB), [2003] 4 All ER 416, [2004] 1
WLR 371.
M’Gillivray v Hope
[1935] AC 1, HL.
Post Office v Norwich
Union Fire Insurance Society Ltd [1967] 1 All ER 577, [1967] 2 QB 363,
[1967] 2 WLR 709, CA.
Robinson v Harkin
[1896] 2 Ch 415.
Ronex Properties Ltd
v John Laing Construction Ltd (Clarke, Nicholls & Marcel (a
firm), third parties) [1982] 3 All ER 961, [1983] QB 398, [1982] 3
WLR 875, CA.
Royal Brompton
Hospital NHS Trust v Hammond (Taylor Woodrow Construction (Holdings)
Ltd, Pt 20 defendant) [2002] UKHL 14, [2002] 2 All ER 801, [2002] 1 WLR
1397.
Telfair Shipping Corp
v Inersea Carriers SA, The Caroline P [1985] 1 All ER 243, [1985] 1 WLR
553.
Wimpey (George)
& Co Ltd v British Overseas Airways Corp [1954] 3 All ER 661, [1955] AC
169, [1954] 3 WLR 932, HL; affg sub nom Littlewood v George Wimpey
& Co Ltd, British Overseas Airways Corp (second defendants
and third parties) [1953] 2 All ER 915, [1953] 2 QB 501, [1953] 3 WLR 553,
CA.
Wolmershausen v Gullick
[1893] 2 Ch 514, [1891–4] All ER Rep 740.
Cases referred to in skeleton arguments
Hunt v RM Douglas (Roofing)
Ltd [1988] 3 All ER 823, [1990] 1 AC 398, [1988] 3 WLR 975, HL.
Law Society v Sephton
& Co [2004] EWCA Civ 1627, [2005] 3 WLR 212.
291
Merlihan v AC Pope
Ltd [1945] 2 All ER 449, [1946] KB 166.
Stott v West
Yorkshire Road Car Co Ltd [1971] 3 All ER 534, [1971] 2 QB 651, [1971] 3
WLR 282, CA.
Thomas v Bunn, Wilson
v Graham, Lea v British Aerospace plc [1991] 1 All ER 193, [1991] 1 AC 362,
[1991] 2 WLR 27, HL.
Yorkshire Electricity
Board v British Telecommunications plc [1986] 2 All ER 961, [1986] 1 WLR
1029, HL.
Appeal
The claimant Aer Lingus plc appealed from the decision of
Simon J on 24 June 2005 ([2005] EWHC 1556 (QB), [2005] All ER (D) 278 (Jun)) on
the trial of the preliminary issue set out at [9] below in proceedings under
the Civil Liability (Contribution) Act 1978 brought by Aer Lingus against
Gildacroft Ltd and Sentinal Lifts Ltd.
The facts are set out in the judgment of Rix LJ.
Michael Pooles QC
and Martin Porter (instructed by Beachcroft Wansbroughs) for Aer
Lingus.
Jonathan Harvey
(instructed by Kennedys) for Gildacroft.
Nicholas Heathcote
Williams (instructed by John A Neil, Bristol) for Sentinal.
Cur adv
vult
17 January 2006.
The following judgments were delivered.
RIX LJ (giving the first judgment at the
invitation of Sir Anthony Clarke MR).
[1] Section 10 of the Limitation Act 1980
provides that a claim for contribution under the Civil Liability (Contribution)
Act 1978 shall have a limitation period of two years from the date on which a
person seeking contribution is ‘held liable … by a judgment’.
[2] The issue on this appeal is whether for
these purposes the judgment spoken of by the statute includes a judgment on
liability only, for damages to be assessed, or whether a judgment on quantum as
well as liability is required to start time running.
[3] The distinction is critical on the facts
of this case. On 27 January 1998 William
Smyth was badly injured while working for the appellants, Aer Lingus plc, at
Heathrow Airport. His hand was trapped
in a document lift which had been supplied to Aer Lingus and installed by
Gildacroft Ltd as primary contractors and Sentinal Lifts Ltd as sub-contractors. The accident arose out of a malfunction of
the lift. Mr Smyth commenced proceedings
against Aer Lingus, Gildacroft and Sentinal in November 2000. On 9 May 2001 he obtained judgment by consent
against Aer Lingus for damages to be assessed.
On 7 June 2001 his proceedings against Gildacroft and Sentinal were
discontinued with Aer Lingus agreeing to pay their defence costs. By an agreement embodied in a further consent
order dated 3 October 2003 there was judgment for Mr Smyth in the sum of
£490,000 and costs. Mr Smyth’s
proceedings thereby came to an end.
[4] Aer Lingus had not so far claimed any
contribution against Gildacroft and Sentinal.
On 4 February 2004, however, Aer Lingus commenced its own action for
contributions or indemnities under the 1978 Act from both those companies. That was well within two years of the final
judgment obtained by Mr Smyth against Aer Lingus on 3 October 2003, but well
outside two years after the judgment on liability alone entered on 9 May
2001. The issue is which judgment
292
marked the start of the statutory two-year limitation
period for Aer Lingus’s claim against the contractors.
THE CIVIL LIABILITY (CONTRIBUTION) ACT 1978
[5] The 1978 Act provides for the essence of
contribution in the following terms:
‘1. Entitlement
to contribution.—(1) Subject to the provisions of this section, any person
liable in respect of any damage suffered by another person may recover
contribution from any other person liable in respect of the same damage
(whether jointly with him or otherwise) …
2. Assessment
of contribution.—(1) Subject to subsection (3) below, in any proceedings
for contribution under section 1 above the amount of the contribution
recoverable from any person shall be such as may be found by the court to be
just and equitable having regard to the extent of that person’s responsibility
for the damage in question …’
[6] Thus the liability to contribute proceeds
by reference to the fact that two persons are each liable in respect of ‘the
same damage’, which does not mean ‘the same damages’. As Lord Bingham of Cornhill said in Royal
Brompton Hospital NHS Trust v Hammond (Taylor Woodrow Construction (Holdings)
Ltd, Pt 20 defendant) [2002] UKHL 14 at [6], [2002] 2 All ER 801 at [6],
[2002] 1 WLR 1397:
‘When any claim for
contribution falls to be decided the following questions in my opinion arise:
(1) What damage has A suffered? (2) Is B
liable to A in respect of that damage?
(3) Is C also liable to A in respect of that damage or some of it?
… I do not think it matters greatly
whether, in phrasing these questions, one speaks (as the 1978 Act does) of
“damage” or of “loss” or “harm”, provided it is borne in mind that “damage”
does not mean “damages” (as pointed out by Roch LJ in Birse Construction Ltd
v Haiste Ltd (Watson and ors, third parties) [1996] 2 All ER 1 at 8,
[1996] 1 WLR 675 at 682) …’
[7] It may be observed that, provided the
liability is in respect of the same damage, the liability to contribute appears
to arise at the same time as the primary liability to the person who has
suffered the damage. As often happens,
the same action incorporates both a primary claim by A against defendants B and
C, and a contribution claim between B and C.
For these purposes, it is not necessary for the quantum of A’s claim to
be established before the court can assess the quantum of contribution between
B and C: for that quantum can be assessed as a matter of the respective
percentages of their liabilities.
THE LIMITATION ACT 1980
[8] Section 10 of the 1980 Act, beneath the
heading ‘Special time limit for claiming contribution’, provides as follows:
‘10.—(1) Where
under section 1 of the Civil Liability (Contribution) Act 1978 any person
becomes entitled to a right to recover contribution in respect of any damage
from any other person, no action to recover contribution by virtue of that
right shall be brought after the expiration of two years from the date on which
that right accrued.
(2) For the purposes of
this section the date on which a right to recover contribution in respect of
any damage accrues to any person (referred to
293
below in this section as
“the relevant date”) shall be ascertained as provided in subsections (3) and
(4) below.
(3) If the person in
question is held liable in respect of that damage—(a) by a judgment given in
any civil proceedings; or (b) by an award made on any arbitration; the relevant
date shall be the date on which the judgment is given, or the date of the award
(as the case may be). For the purposes
of this subsection no account shall be taken of any judgment or award given or
made on appeal in so far as it varies the amount of damages awarded against the
person in question.
(4) If, in any case not
within subsection (3) above, the person in question makes or agrees to make any
payment to one or more persons in compensation for that damage (whether he
admits any liability in respect of the damage or not), the relevant date shall
be the earliest date on which the amount to be paid by him is agreed between
him (or his representative) and the person (or each of the persons, as the case
may be) to whom the payment is to be made …’
[9] As stated above, the issue on this appeal
is whether, for the purposes of s 10(3)(a), Aer Lingus was ‘held liable … by
[the] judgment’ given on 9 May 2001 for damages to be assessed, or only by the
judgment for £490,000 given on 3 October 2003.
[10] The following matters may be noted about
s 10. First, the references to ‘any
damage’ in sub-ss (1) and (2) and to ‘that damage’ in sub-ss (3) and (4) must
be a reference to the same concept of ‘damage’ found in s 1 of the 1978
Act. Secondly, although the two-year
period is said to run from the date on which a right to recover contribution
‘accrues’, it is difficult to think, in the absence of contrary authority, that
that expression is intended to convey that the cause of action for a
contribution under the 1978 Act only arises at the time of any judgment
(whatever that means), award, or payment or agreement to pay compensation, for
otherwise a defendant could not claim contribution from another defendant (or at
best could do so only contingently) until his own liability (and perhaps the
quantum of it too) had been established, or the payment or agreement to pay had
been made. Moreover, the 1978 Act, which
creates the right to contribution, is written in terms of the mere occurrence
(or concurrence) of liability in respect of the same damage. There is no apparent need for that liability
to have been established. On the
contrary, s 1 of the 1978 Act makes clear that a person may be entitled to
contribution even when he has ceased to be liable (sub-s (3)) or, following a
bona fide settlement, whether or not he is or ever was liable (sub-s (4)). The difference between the 1978 Act’s ‘person
liable’ and the 1980 Act’s ‘held liable’ (under s 10(3)) or ‘makes or agrees to
make any payment’ (under s 10(4)) would seem to be clear and deliberate. If the cause of action for a contribution
only arose after judgment, award, or payment (made or agreed), then a defendant
could never claim contribution from a co-defendant (or another party joined by
him to the claimant’s action for the purposes of a claim in contribution) at
any earlier stage: but that is something which happens all the time. Rather, s 10 is stating a ‘[s]pecial time limit
for claiming contribution’, as the heading to the section indicates, and the
concept of the right accruing is fashioned merely for the purposes of dating
the beginning of the two-year limitation period.
[11] Thirdly, in the absence of s 10 of the
1980 Act, there may have been a considerable dispute whether the limitation
period would have been regulated by
294
analogy by reference to the underlying liability in
respect of the same damage, counting from the occurrence of that damage (as s 1
of the 1978 Act would suggest), or whether on the other hand the limitation
period counted only from the ascertainment of the quantum of liability in
question by judgment, award, agreement or payment, which is the underlying
common law notion in the case of claims for contribution between co-sureties or
for a contractual indemnity (see Wolmershausen v Gullick [1893] 2 Ch
514, [1891–4] All ER Rep 740, Post Office v Norwich Union Fire Insurance
Society Ltd [1967] 1 All ER 577, [1967] 2 QB 363, Telfair Shipping Corp
v Inersea Carriers SA, The Caroline P [1985] 1 All ER 243, [1985] 1 WLR
553, Bradley v Eagle Star Insurance Co Ltd [1989] 1 All ER 961, [1989]
AC 957, and generally Chitty on Contracts (29th edn, 2004) vol 1, pp
1589–1590 (paras 28-047 and 28-049)). In the former case, there would be a
danger that the claimant in contribution would be time-barred even before he
knew he was being sued by the person who suffered damage at his hands; whereas
in the latter case, there would be a danger that the right of contribution,
being a creature of statute, would have no limitation period at all, or, if any
by analogy, too extended a period.
Section 10 may therefore be said to provide for a form of
compromise. There would be a special limitation
period starting not with the occurrence of the underlying damage but with
judgment, award, or payment (made or agreed), and that limitation period would
be two years.
THE SUBMISSIONS
[12] On behalf of the respondents, Gildacroft
and Sentinal, their counsel Mr Jonathan Harvey and Mr Nicholas Heathcote
Williams respectively, seeking to uphold the judgment below of Simon J ([2005]
EWHC 1556 (QB), [2005] All ER (D) 278 (Jun)), submitted that the language of s
10(3)(a) was clear. Just as liability
under s 1 of the 1978 Act referred merely to liability, without any
determination of quantum, so s 10 of the 1980 Act did the same, save that there
was need, in order to start time running, of the establishment of liability by
judgment or award: hence ‘held liable’.
But there was no need for the ascertainment of any quantum, and no such
need was expressly stated. A judgment on
liability, with damages to be assessed would do. The only alternative was a payment, agreed or
made. In that case, quantum would be
established because agreed, and that would start time running whether or not the
defendant accepted or continued to dispute liability.
[13] On behalf of the appellants, Aer Lingus,
Mr Michael Pooles QC submitted on the other hand, that the reference to
‘judgment’ or ‘award’ was ambiguous, but properly interpreted in context was a
reference to a judgment which established not only liability but also
quantum. That was why the postscript to
sub-s (3) mentioned the possibility of damages being varied on appeal. That was also why sub-s (4) was premised on
payment, made or agreed, and not on the mere admission of liability. If a judgment on liability alone were to be
sufficient, then it was illogical not to find that a mere agreement to accept
liability would be sufficient.
AUTHORITY
[14] The issue is left open by authority. In George Wimpey & Co Ltd v British
Overseas Airways Corp [1954] 3 All ER 661, [1955] AC 169, the House of
Lords was considering the wording of the predecessor to the 1978 Act, namely
the Law Reform (Married Women and Tortfeasors) Act 1935. Prior to the 1935 Act, judgment in favour of
the victim of a tort against one tortfeasor barred any
295
further action against any joint tortfeasor, and the
tortfeasor sued to judgment could not claim any contribution.
[15] Both those rules were abolished by the
1935 Act, which provided by s 6 that:
‘(1) Where damage is
suffered by any person as a result of a tort (whether a crime or not)—(a)
judgment recovered against any tortfeasor liable in respect of that damage
shall not be a bar to an action against any other person who would, if sued,
have been liable as a joint tortfeasor in respect of the same damage … (c) any
tortfeasor liable in respect of that damage may recover contribution from any
other tortfeasor who is, or would if sued have been, liable in respect of the
same damage …’
[16] No separate special limitation period
applicable to the new right of contribution (such as is now found in s 10 of
the 1980 Act) was then enacted.
[17] In the George Wimpey & Co case
the claimant, an employee of BOAC, had been injured in a collision between a
vehicle owned by BOAC and another owned by Wimpey. He sued Wimpey, who claimed a contribution
against BOAC. The claimant later joined
BOAC, but outside a special one-year limitation period (provided for under s 21
of the Limitation Act 1939) applicable to public authorities (such as
BOAC). At trial, the judge found Wimpey
two-thirds and BOAC one-third to blame, but gave judgment only against Wimpey
(for 100% of the damages awarded) since BOAC escaped liability altogether under
its time-bar defence. The question then
arose whether Wimpey could nevertheless claim a one-third contribution from
BOAC. The trial judge, the Court of
Appeal (by a majority) and the House of Lords all agreed that BOAC was not
liable to contribute on the ground that its case did not fall within the
wording of s 6(1)(c) of the 1935 Act: ‘liable’ in that subsection meant ‘held
liable’, and the subsection could not apply to a party who had been held not
liable.
[18] In the Court of Appeal (Littlewood v
George Wimpey & Co Ltd, British Overseas Airways Corp (second
defendants and third parties) [1953] 2 All ER 915, [1953] 2 QB 501) there
was discussion on a separate defence run by BOAC to the effect that it could
rely on the one-year time-bar under s 21 of the 1939 Act also against Wimpey in
respect of its contribution claim. For
these purposes it argued that Wimpey’s cause of action for a contribution arose
at the same time as the accident and that s 21 applied to that cause of action
as well. On that separate point it
failed, but the reasoning of the members of the court varied. The details of their judgments are now of
only historical interest: but it may be noted that the court laboured (as had
previous first instance judges) with the problem whether the cause of action
for a contribution arose at the time of the accident or only upon judgment
against the tortfeasor claiming contribution.
The court favoured the latter solution.
Both Singleton and Denning LJJ (but not Morris LJ) thought that the case
of co-sureties was analogous (citing Wolmershausen v Gullick [1893] 2 Ch
514, [1891–4] All ER Rep 740 and other authorities). The court also had difficulty with the issue
of limitation within the contribution proceedings. Singleton LJ thought that s 21 did apply (see
[1953] 2 All ER 915 at 920, [1953] 2 QB 501 at 514), but Denning and Morris LJJ
thought that it did not, so that a six-year period prevailed (see [1953] 2 All
ER 915 at 924, 927, [1953] 2 QB 501 at 520, 525).
[19] The reference to the co-surety cases
suggests that the liability upon judgment which (at any rate a majority of) the
Court of Appeal had in mind was
296
one which, as in that case, had itself determined
quantum: but their language is not explicit.
[20] In the House of Lords, however, these
latter questions were put on one side, and the decision and discussion limited
firmly to the point of statutory construction under s 6(1)(c) of the 1935
Act. Viscount Simonds, giving the first
speech, introduced the matter in the following way ([1954] 3 All ER 661 at 663,
[1955] AC 169 at 177):
‘At the hearing of the
action and of the appeal two questions were raised on which there was no
argument before your Lordships, the first as to the date upon which Wimpeys’
right to contribution arose, and the second as to the period of limitation in
respect of a claim for contribution against a public authority under the
Limitation Act, 1939. I am content to
assume that the right to contribution arose, at any rate, not earlier than the
date when the existence and amount of Wimpeys’ liability to Littlewood was
ascertained by judgment and that the relevant period of limitation was six
years.’
[21] Viscount Simonds’ understanding, in other
words, was that the concept of being ‘held liable’ by a judgment for the
purpose of setting time running in a claim for contribution involved the
ascertainment of the quantum of the liability.
That would reflect my understanding of the common law which was
discussed in the Court of Appeal below.
Of course, this was said by way of obiter dictum.
[22] Lord Porter expressed himself thus
([1954] 3 All ER 661 at 667, [1955] AC 169 at 181): ‘The quantum having been
determined, the only question is, can the party against whom judgment has been
given recover contribution from the other who was in part the cause of the
injury?’ It is not clear whether, like
Viscount Simonds, he was assuming that the determination of quantum was
necessary to the claim for contribution, or whether he was simply speaking of the
facts of the case. However, he continued
([1954] 3 All ER 661 at 667, [1955] AC 169 at 182–183) as follows:
‘Substantially, their
view was that Wimpeys were under no liability until judgment was given against
them, that their cause of action arose then and not until then, and,
accordingly, their cause of action against BOAC arose at that date. I need not, I think, set out the authorities
and reasoning on which these opinions are founded except to refer to such cases
as Wolmershausen v Gullick ([1893] 2 Ch 514, [1891–4] All ER Rep 740),
and Robinson v Harkin ([1896] 2 Ch 415), both of which were claims to
contribution between co-sureties and M’Gillivray v Hope ([1935] AC 1),
which was a claim involving the right of present and former employers to
contribution inter se in respect of damages awarded to a workman employed by
them consecutively. If this view be
true, Wimpeys’ liability did not come into existence until judgment had been
given against them and, therefore, they had whatever was the appropriate period
of limitation from that date. What that
appropriate period may be—whether it is a year because BOAC is a public
authority and the action is brought in respect of any act, neglect or default,
or whether it is six years, because the claim is not in respect of any act,
neglect or default but for contribution, is immaterial in the present case
inasmuch as Wimpeys made their claim to contribution in the original action
before judgment was given.’
[23] In this passage, without committing
himself to a personal view, it seems to me that Lord Porter, like Viscount
Simonds, proceeds on an understanding of the
297
Court of Appeal’s reasoning as being founded on the
common law position relating to contribution and indemnities.
[24] Lord Keith of Avonholm merely said this
([1954] 3 All ER 661 at 674, [1955] AC 169 at 193):
‘Your Lordships are not
now concerned with a question which was considered in the courts below, namely,
when the cause of action in the claim for contribution accrued. It is conceded, in conformity with the view
taken by the Court of Appeal, that the cause of action accrued at earliest at
the date when judgment was given in favour of Littlewood against the
appellants.’
[25] That is entirely neutral in its reference
to ‘when judgment was given’, save that it proceeds by reference to the view
taken by the Court of Appeal, which Viscount Simonds had already interpreted as
involving the ascertainment by judgment of the quantum as well as the existence
of liability.
[26] These remarks in the House of Lords are
clearly obiter, concerned with an issue which was not before the House, and
proceed on the basis of assumption only.
Moreover, on the facts, the judgment in question was a judgment for
damages and not on liability only. On
balance, however, I would regard these dicta as being all consistent in
understanding the reasoning of the Court of Appeal as proceeding on the basis
that the ascertainment by judgment of the quantum of the liability in question
was relevant to the accrual of a cause of action for a contribution and thus to
the running of time for purposes of limitation.
I do not think it right to regard Viscount Simonds as speaking purely
for himself in his reference to ‘the existence and amount of Wimpeys’
liability’.
[27] That was also, as it seems, the
understanding of Donaldson LJ in Ronex Properties Ltd v John Laing
Construction Ltd and ors (Clarke, Nicholls & Marcel (a firm),
third parties) [1982] 3 All ER 961, [1983] QB 398, for he said:
‘The starting point of
this submission is that a cause of action for contribution under the 1935 Act
arises at the earliest when the claimant tortfeasor has been held liable, or
has admitted liability to the plaintiff, and the amount of that liability has
been ascertained by judgment or admission.
This proposition is supported by dicta in George Wimpey & Co Ltd
v British Overseas Airways Corp [1954] 3 All ER 661 at 663, 667, 674,
[1955] AC 169 at 177, 182, 193 per Viscount Simonds, Lord Porter and Lord
Keith. It is also in accordance with the
dictum of McNair J in Harvey v RG O’Dell Ltd [1958] 1 All ER 657 at 669,
[1958] 2 QB 78 at 108, and it is consistent with the approach of Parliament in
s 4 of the Limitation Act 1963. For my
part I am content to assume that it is right.’
(See [1982] 3 All ER 961 at 963–964, [1983] QB 398 at 406.)
[28] The learned editors of Clerk &
Lindsell on Torts (19th edn, 2006) p 2024 (para 33-84) cite the Ronex
Properties case as support for the proposition that ‘the judgment must
determine the amount as well as the existence of the liability.’
[29] That reference by Donaldson LJ to s 4 of
the 1963 Act is to the predecessor to s 10 of the 1980 Act. It would seem that the difficulties which the
George Wimpey & Co case had exposed led in due course to a
specific limitation provision being included in the 1963 Act. It was drafted by reference to s 6(1)(c) of
the 1935 Act and was in the following terms:
‘(1) Where under section
6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act 1935 a tortfeasor
(in this section referred to as “the first
298
tortfeasor”) becomes
entitled after the passing of this Act to a right to recover contribution in
respect of any damage from another tortfeasor, no action to recover
contribution by virtue of that right shall (subject to subsection (3) of this
section) be brought after the period of two years from the date on which that
right accrued to the first tortfeasor.
(2) For the purposes of
this section the date on which the right to recover contribution in respect of
any damage accrues to a tortfeasor (in this subsection referred to as “the
relevant date”) shall be ascertained as follows, that is to say—(a) if the
tortfeasor is held liable in respect of that damage by a judgment given in any
civil proceedings, or an award made on any arbitration, the relevant date shall
be the date on which the judgment is given, or the date of the award, as the
case may be; (b) if, in any case not falling within the preceding paragraph,
the tortfeasor admits liability in favour of one or more persons in respect of
that damage, the relevant date shall be the earliest date on which the amount
to be paid by him in discharge of that liability is agreed by or on behalf of
the tortfeasor and that person, or each of those persons, as the case may be;
and for the purposes of this subsection no account shall be taken of any
judgment or award given or made on appeal in so far as it varies the amount of
damages awarded against the tortfeasor.’
[30] It will be observed that s 4 is close to
the present s 10 of the 1980 Act. It is
relevant therefore that Donaldson LJ considered that s 4 was consistent with
Viscount Simonds’ assumption in George Wimpey & Co Ltd v British
Overseas Airways Corp [1954] 3 All ER 661, [1955] AC 169 and was content to
assume that quantum had to be ascertained by judgment or admission before time
began to run. However, as in the
George Wimpey & Co case, no actual decision regarding the point
under discussion was necessary.
[31] When the 1978 Act was enacted, s 4 of the
1963 Act was amended (by para 6 of Sch 1 to the 1978 Act) essentially so as to
replace the reference to the 1935 Act by a reference to the 1978 Act. Under the 1980 Act, s 4 has been
substantially re-enacted as s 10, but s 4(2) has been separated out into sub-ss
(2), (3) and (4) of s 10.
THE STATUTORY LANGUAGE
[32] With this mainly historical background, I
return to the language of s 10 itself. It is common ground that there is no
express reference to the ascertainment of quantum in the language ‘held liable
… by a judgment … or … award’; and that an award, like a judgment, can be
limited to a pure declaration or finding of liability without any ascertainment
of quantum. It is also common ground
that ‘that damage’ is not a reference to damages, but to the victim’s original loss
or injury. In these circumstances,
attention has been concentrated on the subscript to sub-s (3) and on sub-s (4),
for both those passages do contain references to damages.
[33] As for the subscript to sub-s (3), Mr
Harvey and Mr Heathcote Williams (for the respondents) both accept that it is
unnecessary on their construction of the section, since time will begin to run
as soon as liability is established, whether or not quantum has also been
ascertained. In their submission,
therefore, the subscript is merely a piece of cautious draftsmanship, to make
clear, even if unnecessarily so, that any change in the level of damages will
not delay the relevant date.
[34] In my judgment, however, this is not a
cogent explanation, although it was accepted by Simon J. If the ascertainment of damages is not a
necessary condition
299
for the accrual of the right to recover contribution,
then it is confusing, rather than clarifying, to stress that a change in the
level of quantum on appeal will not delay the accrual of the right or the
running of time. On the contrary, the
reference to a judgment or award varying the amount of damages is suggestive of
the underlying assumption that the judgment or award already referred to
earlier in the subsection is a judgment or award which ascertains damages. It seems to me, therefore, that on balance
the subscript supports the case made by Mr Pooles on behalf of Aer Lingus,
although perhaps not strongly so.
[35] It seems to me that this pointer is
underlined, but more strongly, by s 10(4).
Where there is no judgment or award, but the victim’s claim is dealt
with simply by agreement, the relevant date is the earliest date on which ‘the
amount to be paid … is agreed’, and that is so whether liability is admitted or
not. If, however, the ascertainment of
quantum is irrelevant, it is difficult to understand why, where settlement
proceeds by agreement in the absence of judgment, the statute does not focus on
the earliest date on which liability is agreed, where it is, even before the
settlement sum is arrived at. It is true
that a settlement sum may be agreed without any admission of liability; but
equally a settlement sum may be agreed for the very reason that liability is
admitted. Indeed, that not infrequently
happens: a tortfeasor admits liability, for that is not in dispute, but it may
take time to work out the quantum for a settlement. The respondents submit that in such a case, a
judgment for damages to be assessed is normally consented to, as in these
proceedings: and that the statute looks to the formality of such a judgment,
rather than to the relative informality of the mere agreement. However, there need be nothing informal about
an admission of liability—on the contrary; and in any event, s 10(4) is
intended to operate equally whether liability is admitted or not: in other
words the subsection expressly contemplates the case where liability is
admitted, and even so, the admission of liability is ignored for providing the
relevant date. Section 10(4) therefore
suggests that the critical matter is the ascertainment by agreement of the
settlement sum. Parity would therefore
suggest that, where the matter is dealt with by judgment or award, the critical
matter is again the ascertainment of the quantum of liability. The judge accepted that s 10(4) is anomalous,
but he regarded the statute as being otherwise too clear to permit any regard
being paid to this anomaly. In my
judgment, however, the language he relied on (‘held liable’) is not
determinative.
[36] What happens where there is agreement on
a settlement sum followed by a consent judgment for payment of that sum, as
must often occur? Or a judgment for
damages to be assessed followed by agreement on a settlement sum? Are such cases governed by sub-s (3) or sub-s
(4)? They cannot be governed by both:
there can in logic be only one ‘relevant date’, and this is emphasised by the
words which introduce sub-s (4)—‘If, in any case not within subsection (3)
above …’ If sub-s (3) requires only a
judgment for damages to be assessed, then it must follow that, given such a
judgment, sub-s (4) never comes into play, for the case will already fall
within sub-s (3). If, however, sub-s (3)
requires a judgment for damages, then an agreement within sub-s (4) could both
follow a mere judgment for damages to be assessed and anticipate a consent
judgment for the payment of the agreed sum: but it would be the agreement which
comes first at a time when there is no judgment within sub-s (3), and it would
then seem that the relevant date is fixed by sub-s (4). Do such considerations throw any light on the
issue under appeal? I think they do, for
sub-s (4) appears to highlight the importance of the date of agreement of the
settlement sum, but this would be undermined by allowing an
300
earlier judgment for damages to be assessed to be
determinative of the relevant date.
[37] These observations are consistent with
the decision of Crane J in Knight v Rochdale Healthcare NHS Trust [2003]
EWHC 1831 (QB), [2003] 4 All ER 416, [2004] 1 WLR 371. In that case the two-year period under s 10
of the 1980 Act had expired between the anniversary of the date on which an
agreement to settle the victim’s claim had been made and the anniversary of the
consent order which had given effect to the agreement. So it was crucial to know whether the relevant
date was fixed by sub-s (3) or sub-s (4).
It was held that the tortfeasor’s claim in contribution was time-barred,
on the basis that sub-s (4) applied.
Crane J first determined that a consent order amounted to a
‘judgment’. That set up the choice
between the two subsections. He then
decided that sub-s (4) was determinative.
He reasoned (at [24]):
‘My principal reason for
doing so is if a firm agreement is made, as here, time undoubtedly starts to
run at that moment. It would be
different if the agreement required the making of a consent order before it
took effect. Neither party so contends
here. Although Parliament could have
decided that a consent order should restart the clock, there are insufficiently
clear words to indicate that. Indeed the
words in sub-s (1) “Where … any person becomes entitled” and the words in sub-s
(4) “the earliest date on which the amount … is agreed” suggest that the
crucial moment is the first moment when liability arises. It is tidy to conclude that sub-ss (3) and
(4) deal separately with cases decided by a court (or arbitrator) and cases of
agreement.’
[38] Of course, Crane J was not there
concerned with the issue before this court, of a consent judgment for damages
to be assessed followed by a judgment for payment of an agreed sum. It also appears that he may have accepted a
submission that the two subsections are mutually exclusive, sub-s (3) dealing
with cases resolved by the court’s decision (Crane J emphasised the language
‘held liable’ and ‘judgment given’) and sub-s (4) dealing with cases resolved
by the parties’ agreement. If that was
so, then it might seem that sub-s (4) would be the relevant subsection here in
any event, in which case there would be no question of Aer Lingus’s claim in
contribution being out of time. However,
that submission has played no part in the argument before this court (although
it did below) and I express no opinion on it.
Nevertheless, for the rest it seems to me that Crane J’s reasoning is
consistent with the observations I have made above.
[39] I bear in mind that the words ‘held
liable … by a judgment’ are in themselves a powerful reason for thinking that a
judgment on liability in the absence of a determination of quantum is
sufficient for the application of sub-s (3), a fortiori since, if the
appellants’ submission is correct, the subsection could easily have said ‘is
held liable and quantum is determined … by a judgment’. Nevertheless, for the reasons I have sought
to set out above, I think that the language of the section is at least
consistent with and marginally favours Aer Lingus’s submissions.
[40] However, the language of the statute does
not exist in a void, and I revert to the background considerations with which
this judgment began.
FURTHER DISCUSSION AND DECISION
[41] The language of the 1978 Act is not the
same as that of the 1935 Act considered in George Wimpey & Co Ltd v
British Overseas Airways Corp [1954] 3 All ER 661, [1955] AC 169: moreover,
the 1935 Act was not provided with its
301
own limitation provision for a claim in contribution
until the 1963 Act, and that postdates the George Wimpey & Co
case. Nevertheless, it is tempting to
see in s 4 of the 1963 Act, substantially reproduced in s 10 of the 1980 Act,
the answer given to some of the issues raised in the George Wimpey & Co
case. Whether it is true of the 1978
Act, as the Court of Appeal held and the House of Lords was prepared to assume
of s 6(1)(c) of the 1935 Act in the George Wimpey & Co case, that no
cause of action arises until judgment, is not necessary to decide. Nevertheless the reflection of the language
of the George Wimpey & Co case (‘held liable’) in the 1963 Act and
now in the 1980 Act, together with the reasoning of the Court of Appeal in the
George Wimpey & Co case reflecting the position at common law, and the
House of Lords’ understanding of that reasoning, most clearly stated by
Viscount Simonds, strongly suggest to me that the correct interpretation of s 4
and now of s 10 is that time does not begin to run until the quantum of the
claimant tortfeasor’s liability has been ascertained either by judgment (or
award) or agreement. In my judgment that
is consistent with the language of s 10.
Indeed the textual and background considerations support one another
towards that conclusion.
[42] In this connection, it was submitted by
both sides that policy considerations favoured their respective positions. I have not been much assisted by policy. I can see that if the two years are only
triggered by the ascertainment of quantum, then there is room for greater
delay, and the law does not favour delay.
I also recognise that the establishment of liability against a
tortfeasor, even in the absence of the ascertainment of quantum, can be seen as
a sufficient warning to him of the need to take formal steps to secure any
contribution he considers he is entitled to.
On the other hand, in the George Wimpey & Co case the House
of Lords was prepared to assume, following the Court of Appeal, that a six-year
limitation period following the ascertainment of quantum was the correct
answer. In this connection, the
statutory choice of a special two-year period, introduced in 1963, may well be
regarded, as I have ventured to suggest above, as a suitable compromise. In any event, the fact that this point has
not fallen for decision before this case seems to me to indicate that the
practical (and thus policy) considerations are not of great moment.
[43] For all these reasons, in respectful
disagreement with the judge, who preferred the arguments of the respondents, I
would hold that the judgment or award referred to in s 10(3) of the 1980 Act as
setting the relevant date for the running of time against a tortfeasor who
seeks contribution under the 1978 Act is a judgment or award which ascertains
the quantum, and not merely the existence, of the tortfeasor’s liability. I would therefore allow Aer Lingus’s appeal.
MOORE-BICK LJ.
[44] I agree.
SIR ANTHONY CLARKE MR.
[45] I also agree.
Appeal allowed.
Kate
O’Hanlon Barrister
302
.
[2006] 2 All ER 303
Kearsley v Klarfeld
[2005]
EWCA Civ 1510
CIVIL PROCEDURE: CRIMINAL; Road Traffic: PRACTICE
DIRECTIONS
COURT OF APPEAL, CIVIL DIVISION
BROOKE,
DYSON AND CARNWATH LJJ
8
NOVEMBER, 6 DECEMBER 2005
Practice – Civil litigation – Case management –
Road traffic accidents – Low velocity collisions – Claims for soft tissue
injuries – Low value claims – Whether claims should be allocated to multi-track
– CPR Pt 26 PD 9.1(1).
The parties were involved in a road traffic accident,
in which the defendant’s car collided with the rear of the claimant’s car. The claimant commenced proceedings claiming
damages for personal injury, alleging that he had suffered a soft tissue injury
to his neck and upper back. CPR Pt 26 PD
9.1(1)a provided that where the court was to decide
whether to allocate to the fast track or the multi-track a claim for which the
normal track was the fast track, it would allocate the claim to the fast track
unless it believed that it could not be dealt with justly on that track. The court would, in particular, take into
account, inter alia, the extent to which expert evidence might be necessary and
whether the trial was likely to last more than one day. At the request of both parties the claim was
originally allocated to the fast track.
An assessor instructed by the defendant concluded that the collision had
taken place when the defendant was driving at less than 3 mph. An amended defence was subsequently filed,
containing an allegation that the claimant was fabricating his symptoms, based
on the opinions of the assessor and a medical expert. Directions were given, inter alia, allocating
the claim to the fast track; and allowing each side to rely on a medical expert
and the defendant to rely on the assessor.
Thereafter, the defence sought allocation to the multi-track and
permission for the experts to give oral evidence. They also gave a revised estimate of two days
for the trial rather than one, and an increased estimate of costs. The district judge refused to re-track the
claim or to give directions that oral evidence be given. On appeal, the judge held that the district
judge should have concluded that because it was a fraud claim the case should
have been in the multi-track with an estimate of two days so that the matter
could be properly dealt with. The
defendant appealed. The court was told
that practitioners in different parts of the country were being faced with a
difference of approach amongst different members of the judiciary in connection
with case handling of claims for personal injury arising out of low velocity
impacts between two motor vehicles where the driver or front seat passenger
claimed damages, usually for soft tissue injuries to some part of the spine,
and the insurers of the other vehicle asserted that the impact had been so insignificant
that they could not have suffered the injuries of which they had made
complaint.
________________________________________
aCPR Pt 26 PD 9.1, so
far as material, is set out at [29], below
________________________________________
Held – From time to time problems arose in the
context of personal injury litigation which caused considerable case handling
complexities in the county courts during the period before law and practice had
learned how to accommodate them. In the
last resort it had to be for the judge with case
303
management responsibilities in the particular case to
decide what directions were appropriate.
However, until some of the issues that arose in disputes such as that in
the instant case had been authoritatively dissected and analysed at the level
of the High Court, it would not be wrong or disproportionate to allocate what
would ordinarily be a fast-track claim (by reason of its low value) into the
multi-track on the grounds that the criteria for the admission of oral expert
evidence were satisfied and the trial was therefore likely to last more than
one day. In the instant case, the judge
had been right to re-allocate the claim to the multi-track. The appeal would therefore be dismissed (see
[22], [23], [28], [33]–[35], [39], [52], below).
Per curiam. The pre-action protocol should be
followed in all cases. In cases of this
kind when intimating a claim the claimant’s advisers should offer access to
their client’s vehicle to the defendant’s insurers for the purpose of early
examination (if they so wish), and give early disclosure (with irrelevant
passages redacted, if necessary) of any contemporaneous general practitioner’s
notes or other relevant medical notes.
This will enable the defendant’s insurers to get hold of relevant evidential
material expeditiously and inexpensively, as the nature of these claims
requires. In turn, it may be desirable
for the defendant’s insurers to make it clear that they regard this as a low
velocity impact case in which they will be seeking more expensive advice than
the value of the claim would justify (see [50], below).
Notes
For case management tracks, for allocation, for claims
normally allocated to the fast track, for the general rule for allocation, and
for re-allocation, see 37 Halsbury’s Laws (4th edn reissue) paras
63–66, 466, 468, 470, 472.
Cases referred to in judgment
Armstrong v First
York Ltd [2005] EWCA Civ 277, [2005] 1 WLR 2751.
Bannister v SGB plc
[1997] 4 All ER 129, [1998] 1 WLR 1123, CA.
Callery v Gray (Nos
1 and 2) [2002] UKHL 28, [2002] 3 All ER 417, [2002] 1 WLR 2000.
Cooper v P & O
Stena Line Ltd [1999] 1 Lloyd’s Rep 734.
Dimond v Lovell
[2000] 2 All ER 897, [2002] 1 AC 384, [2000] 2 WLR 1121, HL.
Liptrot v Charters (6
April 2005, unreported), Manchester County Court.
Rooney v Graves (7
April 2004, unreported), Liverpool County Court.
Sharratt v London
Central Bus Co Ltd, Hollins v Russell [2003] EWCA Civ 718, [2003] 4 All ER
590, [2003] 1 WLR 2487.
Appeal
The defendant Daniel Klarfeld appealed with permission of
Brooke LJ from the decision of Judge Tetlow on 10 March 2005 in the Manchester
County Court allowing the appeal of the claimant Alan Mark Kearsley from the
order of District Judge Stephens in the same court on 21 December 2004 refusing
to re-allocate the claimant’s claim against the defendant for damages for
personal injury from the fast track to the multi-track. The facts are set out in the judgment.
Mark Turner QC
and Paul Higgins (instructed by Horwich Farrelly, Manchester) for
the defendant.
Benjamin Williams
(instructed by Coyne Learmonth, Liverpool) for the claimant.
304
At the conclusion of argument the court announced
that the appeal would be dismissed for reasons to be given later.
6 December 2005.
The following judgment of the court was delivered.
BROOKE LJ.
[1] This is the judgment of the court. This is an appeal by the defendant from an
order made by Judge Tetlow in this personal injuries action in the Manchester
County Court on 10 March 2005 whereby he allowed an appeal by the claimant from
an order made by District Judge Stephens in the same court on 21 December
2004. Although Judge Tetlow’s order was
for case management directions, Brooke LJ granted permission for a second
appeal because it raised a point of practice of general importance. On 8 November this court heard the appeal and
dismissed it, for reasons that would be given later. These are our reasons.
[2] The claimant’s accident occurred on 22
July 2003. The defendant accepted
liability immediately, while disputing causation, and his insurers have already
paid for the cost of repairs to the claimant’s car. The defendant says he stopped his car a few
feet behind the claimant’s car, and that while he was waiting for the claimant
to move forward, his foot slipped off the clutch and his car collided with the
rear of the car in front. On 28 July the
claimant’s solicitors gave notice of a personal injury claim and suggested that
their client should be examined by Dr Picardo, who is a GP. They did not put forward three names, as the
Pre-Action Protocol for Personal Injury Claims requires. The defendant’s insurers rejected that
proposal, and instead suggested the name of Mr Newman, who is a consultant
orthopaedic surgeon and traumatologist.
On 6 August the claimant’s solicitors asked for Mr Newman’s curriculum
vitae (cv). On 19 August the defendant’s
insurers said that this would be forwarded to them. The claimant’s solicitors
were apparently not prepared to wait, and on 20 August they went ahead
unilaterally and instructed Dr Picardo.
[3] On the same day the defendant’s insurers
procured a report from Mr Ralph, who is a representative of a firm called
Northern Assessors. He does not profess
any professional qualifications other than being a member of the Institute of the Motor Industry (which does
not require any particularly advanced qualifications as a condition for
membership). On the basis of the
instructions he received from the defendant’s insurers, which included a brief
assessment of the cost of repairs to the claimant’s car (which he did not
examine), he concluded that the collision had taken place when the defendant
was driving at less than 3 mph. He
expressed the opinion that in these circumstances the collision would not have
caused any unusual force to be applied to the claimant as he sat in his car.
[4] On 5 September the defendant’s insurers
forwarded Mr Newman’s cv to the claimant’s solicitors. On 10 September Dr Picardo wrote his
report. He concluded that the claimant
had suffered a soft tissue injury to his neck and upper back, from which he
would recover within about eight months.
He described the injury as a mild to moderate whiplash injury. The claimant had suffered a whiplash injury
in the past, and Dr Picardo said that it was well recognised that a history of
neck pain in the past could delay the recovery period.
[5] His solicitors sent his report to the
defendant’s insurers on 8 October. On 26
November those insurers observed that Dr Picardo had not read the claimant’s
GP’s notes. They asked him some
questions on the basis that the
305
defendant’s car was travelling at a low
velocity. Dr Picardo responded to these
questions during December.
[6] On 1 December the claim form was
issued. It named the wrong defendant,
and it later had to be amended and re-served.
A defence was filed in non-contentious terms. On 5 May 2004 the claimant filed his answers
to an allocation questionnaire without waiting for an amended defence. He requested allocation to the fast
track. On 10 May the defendant similarly
asked for allocation to the fast track.
His solicitors gave a time estimate of one day, and estimated that their
total costs would be £7,000. It is not
clear to us whether the amended claim form had been served by this stage: there
was certainly a delay before this happened.
[7] On 9 July 2004 an amended defence was
filed. It referred to the conclusions of
Mr Ralph’s report and described Mr Newman’s expertise at some length. It continued:
‘In this case Mr Newman
concluded that—(i) It is very unlikely that injury was sustained by [the]
claimant; (ii) If any symptoms were truly experienced then these would not have
been associated with the functional detriment claimed over the period of time
described; (iii) The prognosis offered by Dr Picardo is unduly pessimistic and
it is highly unlikely that symptoms which apparently take so long to settle can
be sustained in impacts of such minimal severity.
In these circumstances,
and guided by the opinions of Northern Assessors and Mr Newman, the defendant’s
case is that the claimant is fabricating his symptoms and that no injuries were
truly sustained by [him].’
This amended defence was signed by a trainee solicitor.
[8] Three days later the defendant’s
solicitors served Mr Newman’s report, which was along the lines indicated in
the amended defence. He had not examined
Mr Kearsley before writing the report, although we were told that he did so
much later. In a covering letter, Mr
Newman expressed doubts about Dr Picardo’s expertise in a case of this
type. The defendant’s solicitors,
however, took no immediate steps to alter the answers they had given to the
allocation questionnaire.
[9] On 22 July Deputy District Judge Hamlin
gave standard directions on paper. He
allocated the claim to the fast track in accordance with the requests from both
sides, and he permitted the claimant to rely on Dr Picardo and the defendant to
rely on Mr Ralph and Mr Newman. Any
application for oral evidence to be permitted at the trial was to be made by 19
November, and a trial window in February 2005 was set for the trial. This order was sealed and issued on 28 July.
[10] Instead of asking a district judge to
reconsider this order, on 2 August the defendant’s solicitors filed further
answers to an allocation questionnaire, supported by written submissions. They now sought allocation to the
multi-track, and permission for the experts to give oral evidence. They also gave a new estimate of two days for
the trial, and a revised estimate of £12,000 for their total costs. In an addendum to their answers they
explained why they were seeking these directions. They said that their client’s allegation was
a serious one and could only be properly dealt with by the parties calling such
expert evidence as they saw fit. Among
other things they referred to a recent judgment by Judge Stewart QC, the
designated civil judge at Liverpool, in Rooney v Graves
306
(7 April 2004, unreported) in which he said that in
cases in which an allegation of fraud was made the court must investigate the
claim rigorously. The court took no
action, presumably on the basis that case management directions had so recently
been given.
[11] On 8 September Dr Picardo wrote a further
letter in which he reiterated his belief that the claimant had suffered a mild
whiplash injury. He appended a small
anthology of studies which tended to suggest that there was no strong
correlation between the extent of vehicle damage and injuries in minor
collisions. He did not comment on Mr
Newman’s report as such.
[12] On 15 October the claimant’s solicitors
evinced for the first time a wish to call a more specialist expert. In due course they disclosed a report from Mr
Nee dated 2 November. He is a consultant
orthopaedic surgeon who professes a special interest in injuries allegedly
sustained in low velocity collisions. He
had examined the claimant and credited his symptoms. He also expressed doubts about the validity
of Mr Ralph’s conclusions.
[13] On 11 November the defendant’s solicitors
stated in a letter to the claimant’s solicitors that oral evidence was
necessary. They added that two days were required, and that the case should be
transferred to the multi-track. On 16 November the claimant’s solicitors
applied to the court for a re-allocation to the multi-track and permission to
call an orthopaedic surgeon instead of Dr Picardo. On 21 December the matter came before
District Judge Stephens on a 15-minute appointment. Although the hearing in fact took twice that
time, it is clear from the transcript that it was conducted throughout under
severe time pressures.
[14] At the hearing the defendant’s solicitors
resisted the application for permission to call Mr Nee. The claimant’s solicitors in their turn
relied on the arguments that had been addressed by the defendant’s solicitors
themselves three months earlier to the effect that when fraud was alleged, such
an allegation could only properly be conducted by the parties calling such
expert evidence as they saw fit because it was such a serious allegation to
make.
[15] The district judge considered that nothing
material had changed since Deputy District Judge Hamlin’s order five months
earlier. She was worried that the
directions that were being sought were disproportionate. This was a relatively low value claim, and
she had to think of the proportionality of the costs and expense. The way the evidence of Mr Newman was put was
going to come down to the credibility of the claimant as a witness at the
trial. Case management directions had
already been given for the three non-lay witnesses, ‘all of it being paper
exercises and questioning’. She really
could not see that this was a case that ought to be completely re-tracked and
completely re-timetabled, with the trial window being extended and the trial
being extended to two days. She directed
a timetable leading to a joint meeting between Mr Newman and Dr Picardo and
refused to give directions that they give evidence orally. She put back the trial window by two months,
because of the delay caused by the claimant’s change of strategy in
mid-October.
[16] Judge Holman gave the claimant permission
to appeal, and the appeal was heard on 10 March 2005. In his judgment Judge Tetlow said it was
clear to him that there was a need to have regard to the overriding objective that
justice should be done. The claimant was
a 45-year-old male nurse, and if fraud was found against him there might be
consequences for him that were more serious than merely losing this case. An allegation of fraud was a matter that had
to be
307
taken seriously, and there needed to be a proper
examination of the issues at the trial.
[17] The judge seems to have thought, wrongly,
that the deputy district judge had made his case management directions after
the defendant’s solicitors had estimated a two-day trial on the basis of
‘experts all round’. He observed that
the deputy district judge had not taken a point about fraud being alleged. He said that the claimant’s solicitors should
have sought to set aside his order, which they failed to do, and he felt
sympathy for District Judge Stephens because it was quite clear that not enough
time had been allocated to her for dealing with the matter. It appeared that she had felt bound to uphold
the earlier order.
[18] Judge Tetlow said that she had been wrong
not to revisit the matter. She should have concluded that because this was a
fraud case, it should be in the multi-track, and that it would need to be
properly looked at. She should also have
realised that unless Dr Picardo and Mr Newman were going to agree suddenly,
they would have to be called to be cross-examined, as would Mr Ralph. The judge felt she should have given leave to
appeal out of time against the original order.
He added:
‘It seems to me fairness
dictates in a fraud case it be investigated properly. No one should lose his name merely because
the Rules seem to say otherwise. They
are not our masters. They are to help
matters progress. If things go wrong
then they must be put right.’
[19] He went on to say that any trial judge
faced with this case would accede to a request for an adjournment ‘at vast
expense’ so that the proper expertise could be put in place, and so that there
could be an engineer to balance Mr Ralph if so required. He was firmly of the view that the matter
should be in the multi-track, with an estimate of two days so that the matter
could be properly dealt with.
[20] He said that rather than directing the
two medical men to meet to see if they could agree, consideration should be
given to the question whether another expert was necessary for the claimant. Dr Picardo was a GP, and as the judge
understood it, when he was asked to comment on Mr Newman’s report, he had
listed what there was in the literature and did not make any comment on the
report. He did not profess any
expertise, unlike Mr Newman, who had poured scorn on Dr Picardo’s expertise and
the quality of his examination without himself dealing with the literature Dr
Picardo had produced. The judge felt
that there was not equality of arms or a level playing field, and since the
claimant did not think that Dr Picardo was the right man, the court should look
again and revisit the order.
[21] He repeated that the rules were our
slaves and not our masters, and that if he were the trial judge he would say
that the case was not in a proper shape for trial, nor was it fair. He therefore permitted the claimant to rely
on Mr Nee in place of Dr Picardo and to file and serve a report from an
engineer. He also gave consequential directions. Two days have now been fixed for a trial
starting on 10 January 2006. As we have
said, we dismissed the defendant’s appeal, and this trial date still stands.
[22] In giving our reasons for dismissing the
appeal, it is necessary to put the issues in their contemporary context. From time to time problems arise in the context
of personal injury litigation in this country which cause considerable
case-handling complexities in the county courts during the period before law
and
308
practice have learned how to accommodate them. When they arise, the same point tends to crop
up again and again all over the country, usually in connection with
comparatively low value litigation. In
the last ten years this phenomenon has been observed in relation to the
‘automatic strike-out’ cases under the old CCR Ord 17, r 11 (see Bannister v
SGB plc [1997] 4 All ER 129, [1998] 1 WLR 1123), the credit hire litigation
(see Dimond v Lovell [2000] 2 All ER 897, [2002] 1 AC 384) and the
conditional fee agreement litigation (see Callery v Gray (Nos 1 and 2)
[2002] UKHL 28, [2002] 3 All ER 417, [2002] 1 WLR 2000; and Sharratt v
London Central Bus Co Ltd, Hollins v Russell [2003] EWCA Civ 718, [2003] 4
All ER 590, [2003] 1 WLR 2487). It is
currently being encountered in connection with claims for personal injury
arising out of low velocity impacts between two motor vehicles even if the
scale of the problem is not as all-pervasive as those we have mentioned.
[23] In this type of case, of which
Armstrong v First York Ltd [2005] EWCA Civ 277, [2005] 1 WLR 2751 is a
recent example, the driver or front seat passenger in a motor vehicle claims
damages for personal injury (usually in the form of soft tissue injuries to
some part of the spine) after their vehicle has been hit by another
vehicle. The insurers of the other
vehicle then assert that the impact was so insignificant that they cannot have
suffered the injuries of which they have made complaint. They rely on principles of bio-mechanics in
support of their contention that the claimants cannot be telling the truth. In Armstrong’s case this court rejected
a contention that if the court cannot detect any logical flaw in the expert
evidence tendered by the defendant, judgment must be entered for the defendant,
however honest the claimant(s) may have appeared to the court. Brooke LJ said at [27]:
‘In my judgment there is
no principle of law that an expert’s evidence in an unusual field—doing his
best, with his great experience, to reconstruct what happened to the parties
based on the secondhand material he received in this case—must be dispositive
of liability in such a case and that a judge must be compelled to find that, in
his view, two palpably honest witnesses have come to court to deceive him in
order to obtain damages, in this case a small amount of damages, for a case
they know to be a false one.’
[24] It is a striking feature of that case,
which was originally tried by Judge Stewart QC in the Liverpool County Court on
11 March 2004, that that judge had been very favourably impressed by the
evidence of the forensic engineer who gave oral evidence as a single joint
expert. Brooke LJ described the effect
of this witness’s evidence in these terms (at [14]):
‘He was reporting on the
basis of what he had been told about the damage to the bus and an inspection
that had been made on his behalf to the Ford Fiesta after repairs had been
carried out. His evidence was that in
order for the Fiesta to move just on its springs, without the vehicle’s wheels
moving, the impact would have had to be such as to cause some distortion to the
panels of the vehicle, but there was not any.
But if there was no distortion to the panels of the vehicle and the
vehicle did not even move on its springs, there would be no movement of the
occupants of the vehicle, much less any movement which would possibly injure
their spines. [He] said that unless the
person in question is peculiarly vulnerable the vehicle would have to move on
the road surface in order to cause injury.
There was no evidence that this vehicle moved across the road surface at
all with either the
309
footbrake or the
handbrake on. [Counsel for the
defendant] encouraged us to read the transcript of [this witness’s] evidence,
which I have done; and he stood up to a lot of questioning by counsel
instructed by the claimants and also by the judge himself. His thesis, as the judge found, stood up to
this questioning.’
[25] Judge Stewart said that this witness gave
his evidence in a way which was logical and consistent, and accepted that there
was some force in counsel’s criticism that the claimant had not called or
applied to call any engineering evidence from another expert, to which the
defendant would not have objected. (The
claimants had in fact incurred £40,000 worth of expense in bringing these two
very small claims to court without having to incur any further expense in
instructing their own expert witness).
But although the judge could not point to any flaw in the witness’s
evidence, he entered judgment for the claimants because of his clear and
unequivocal impression of them as witnesses.
He had earlier described how they had given their evidence in a
transparently truthful, honest and guileless way, and later spoke of their
veracity and straightforwardness. He
proceeded to award one of the claimants a little over £1,000 and the other
claimant £2,000, and this court upheld his judgment.
[26] I mention this because we have now been
shown the transcript of a judgment by Judge Holman in the Manchester County
Court which he delivered on 6 April 2005 in the unreported case of Liptrot v
Charters, following a two-day trial.
The defendant’s car had run into the car in front of her, and the
claimant was awarded £1,500 damages for a neck sprain. The judge prefaced his judgment by saying
that from the simple facts of the case had emerged a strongly contested dispute,
with an allegation that the claim for damages for personal injury was
fraudulent. He said that this was
becoming an increasingly familiar occurrence in his court. The same expert witness who had impressed
Judge Stewart so much gave evidence for the defendant, and an expert medical
witness gave evidence on behalf of the claimant.
[27] On this occasion Judge Holman was
singularly unimpressed by the evidence of that witness, when he put it
alongside the expert medical evidence and the other evidence he had received in
the case. He found him to be
unimpressive, and he said he was unable to rely on his evidence except to the
extent that he had made concessions favourable to the claimant. One example Judge Holman gave was that
although in a joint statement the witness had accepted that research reported
in the medical literature had been carried out principally with volunteers
sitting in an ideal position, and that injuries were affected by the
positioning of the individual, the positioning of the head restraint, and the
position of the head at the time of impact, he had failed to mention a number
of other intrinsic and extrinsic factors which he was to acknowledge under
cross-examination affected the risk of injury.
These included an unawareness of the impending collision. As in Armstrong’s case the judge was
to find that the claimant was trying to give him her honest recollection of
events. He said in robust terms that she
was not a fraudster advancing a claim which she knew to be false.
[28] These two cases identify the contemporary
dilemma in stark terms. A personal
injuries claim which is only just above the small claims limit; an allegation
by the defendant’s insurers, based on complex theorizing, to the effect that
the claimant has set out to present a claim he/she knows to be false; and a
reluctance on the part of the defendant’s insurers to accept that the court can
do
310
justice in relation to liability and causation simply
by hearing the lay witnesses describe what happened in the accident and by
considering written medical evidence about the simple injuries, the damage to
the vehicles, and the claimant’s pre-accident medical state. How is such a case to be fairly tried in less
than two days, with time available for the expert evidence to be put to the
test by oral evidence and cross-examination?
[29] The governing rules as to allocation in
this context are set out in CPR Pt 26 PD 9.1(1):
‘(1) Where the court is
to decide whether to allocate to the fast track or the multi-track a claim for
which the normal track is the fast track, it will allocate the claim to the
fast track unless it believes that it cannot be dealt with justly on that
track.
(2) The court will, in
particular, take into account the limits likely to be placed on disclosure, the
extent to which expert evidence may be necessary and whether the trial is
likely to last more than a day.’
[30] CPR 35.5 provides that expert evidence is
to be given in a written report unless the court directs otherwise, and that if
a claim is on the fast track, the court will not direct an expert to attend a
hearing unless it is necessary to do so in the interests of justice.
[31] In addition to the problems created by
the court’s need to resolve issues of expert evidence, a further problem is
created by the fact that it has become customary for a defendant not only to
plead the facts on which he relies, but to add a positive allegation that the
claimants has fabricated his/her claim or is otherwise guilty of fraudulent
conduct in putting forward the claim and pursuing it to court.
[32] All this against a background, freely
accepted by counsel on both sides, that a distressing feature of contemporary
England is a willingness on the part of many people to put forward bogus claims
for damages of a kind which the defendant’s insurer cannot properly evaluate
without recourse to the type of expert evidence that features in the present
case. This court received a similar
explanation of the insurers’ dilemma in Armstrong’s case (see the
judgment of Brooke LJ at [20]).
[33] In our judgment Judge Tetlow was right to
overrule the district judge and to re-allocate the claim to the multi-track for
the reasons he gave. Because she was
under such pressure of time the district judge did not adequately address the
question whether the case could be dealt with justly on the fast track, or
consider whether because fraud was alleged it was necessary in the interests of
justice for the experts to attend so that the trial judge could properly
unravel the complexities that were inherent in their contested evidence. Nor did she consider issues relating to the
desirability of equality of arms.
Although it would have been very much better if an application had been
made promptly pursuant to CPR 3.3(5)(a) for Deputy District Judge Hamlin’s
order (made on paper) to be varied, circumstances had certainly altered since
then because he had made his order on the basis of the parties’ answers to the
original allocation questionnaire (served before Mr Newman’s report and the
amended defence were available), and now both parties had altered their stance
and were both contending that expert evidence must be called in order to deal
justly with the amended defence case, so that a one-day trial in the fast track
would not achieve justice.
311
[34] This analysis would be the same whether
Dr Picardo or Mr Nee were the claimant’s expert witness. Each would have to be cross-examined, as
would Mr Ralph. This was not a case which
could be justly disposed of by ‘paper exercises and questioning’ as the
district judge supposed. By the very
nature of the issues raised by the defence, the expert witnesses had to be
called to give oral evidence if justice was to be done. Judge Tetlow was, in our judgment, right to
express the views he did.
[35] We have been told by counsel for the
defendants that practitioners in different parts of the country are being faced
with a vast difference of approach amongst different members of the judiciary,
and that this inconsistency in approach is causing confusion and expense
because the same points are being argued in every case with different
results. A number of experienced trial
judges understandably believe that these cases cannot be dealt with
satisfactorily on the papers, although the form of the directions they make may
depend on what they think of the cogency of the reports before them. In the last resort it must be for the judge
with case management responsibilities in the particular case to decide what
directions are appropriate. But it
appears to us that until some of the issues that arise in these disputes have
been authoritatively dissected and analysed at High Court level, it would not
be wrong or disproportionate to allocate what would ordinarily be a fast track
claim (by reason of its low value) into the multi-track on the grounds that the
criteria for the admission of oral expert evidence are satisfied and the trial
is therefore likely to last more than one day.
[36] We hope that consideration may now be
given by the designated civil judges on the Northern Circuit, in consultation
with the appropriate presiding judge, to the possible value of grouping a
number of these claims together before a High Court judge who has expertise in
trying personal injuries litigation. At
such a series of trials the judge might be able to hear a number of experts on
each side of the argument and be able to give authoritative guidance on the
appropriate approach to some of the generic issues that feature in these cases.
[37] For instance, Mr Nee makes the following
points in his report in the present case: (i) Whiplash associated disorder is a
well recognised consequence of low speed impacts, particularly when the
claimant is a driver or front seat occupant, when there is no anticipation or
bracing, and when the collision occurs from the rear. (ii) Vehicle damage is
not a good indicator of injury risk, because modern cars are equipped with
bumper systems that will often prevent property damage at speeds well above the
so-called threshold for harm. (iii) Delta V (the estimated change of velocity
in the struck vehicle) is only one factor implicated in injury risk, and the
modern understanding of the kinematics of whiplash injury requires many other
factors to be taken into account. (iv) Many of the factors relevant to energy
transfer are not available to ‘auto crash reconstructionists’, particularly
when the only evidence that is available to them comes from a superficial
examination of one or both vehicles some time after the event. The notion that an engineer can determine
Delta V and injury risk in these circumstances is absurd. (v) If the engineers
are using a validated method to determine the Delta V, it is necessary to know
the margin for error in the estimation and to have access to any peer-reviewed
literature supporting this method of assessment as a valid means of determining
Delta V in crashes in the real world. (vi) The medical literature addressing
the relationship between impact vehicle and injury risk needs to be carefully
analysed because it appears to
312
give conflicting messages. (vii) In his opinion the
examining medical expert must conduct a clinical examination of the
claimant and obtain a detailed medical history from him, as well as reviewing
associated documents. Mr Williams, who
appeared for the claimant, also told us that factors like the comparative
stiffness of the vehicles and the alignment of their bumpers may also come into
play.
[38] It is worrying to think that these issues
are now being litigated on an individual basis at disproportionate expense in
quite small claims up and down the country, and although a single judgment in a
group of cases would not be able to resolve all the uncertainties it would
surely be likely to furnish a more structured framework for judicial
decision-making in this field than is available to district judges and circuit
judges today.
[39] Given that Mr Newman’s intervention
elevated the gravity of what was being said in the defence, and Dr Picardo was
understandably not well qualified to match his expectation and learning, Judge
Tetlow was in our judgment entitled in these unusual circumstances to permit
the claimant to call Mr Nee and to seek an expert engineer to match Mr Ralph,
for the reasons he gave. Once he had
overruled the district judge about the nature of the trial, the judge was
entitled to give directions which would ensure that the parties were on a level
playing field for that type of trial, as the overriding objective requires.
[40] There is one final important point of
practice we need to mention. In pre-CPR
days the rules made it obligatory to plead the material facts a party relied on
for his claim or his defence. These
might include an allegation of fraud (see RSC Ord 18, r 7(1) and 8(1) and s 76
of the County Courts Act 1984). In the
Practice Direction to CPR 16 specific reference is now made to the need for a
claimant to set out any allegation of fraud in his particulars of claim (para
8.2), but the requirements for the contents of a defence are not reduced to
that level of specificity (see para 10.1, cross-referring to CPR 16.5). Para 5.6.3 of the Queen’s Bench Guide,
however, states:
‘In addition to the
matters listed in paragraph 10, full particulars of any allegation of
dishonesty or malice and, where any inference of fraud or dishonesty is alleged,
the basis on which the inference is alleged should also be included.’
[41] This practice should certainly be
followed in the county court in cases where it is appropriate to do so. We were puzzled, however, by the practice
that has started to emerge in low velocity impact litigation of requiring the
defence to include a substantive allegation of fraud or fabrication. We were told that this practice probably
flowed from a judgment given by Belinda Bucknall QC, sitting as a deputy high
court judge in the Admiralty Court, in Cooper v P & O Stena Line Ltd [1999]
1 Lloyd’s Rep 734.
[42] In that case the defence in an action
arising from personal injuries sustained on board a ship consisted of a
combination of a denial that there had been any accident at all, a plea of
contributory negligence, an admission that the plaintiff had complained that he
had hurt his back on the day in question, an assertion that the ship’s plate
room floor was by its nature wet, and a denial that the floor was covered with
water either to a depth of three inches or at all.
[43] The defendant’s original medical expert
(who was incapacitated by the time of trial) had said in his report that he
believed that from a date three months
313
after the incident the plaintiff had been fabricating
his symptoms and disability, and distorting physical signs for his own
ends. A direct quotation to this effect
was then included in the defendant’s original reply to the plaintiff’s schedule
of special damage. However, when the
original expert had to drop out, the defendant’s new expert simply said that he
agreed with his predecessor’s comments without reciting them, and the revised
reply to the schedule of special damage (which was all that was placed before
the judge) merely referred to the findings of the two medical experts without
reciting what they were. In these
circumstances the deputy judge said (at 736):
‘The allegation is one
of fraud. If it had been made good …
[the plaintiff] would have been exposed to the possibility of criminal proceedings. Surprisingly, given the serious nature of the
allegation, the body of the defence contained no pleading to support it.’
A little later she said:
‘I did not consider it
satisfactory that an allegation as serious as fraud, which is required by R.S.C.,
O. 18, r. 8(1)(a) to be specifically pleaded, should be capable of
ascertainment only by conducting a paper chase through the medical reports …
Counsel for the defendants told me that it is not the usual practice to plead
malingering. If that is so it seems to
me that the usual practice is in disregard of O. 18, r. 8 (1)(a), which is
itself a reflection of common justice. I
asked for the allegation to be pleaded and gave leave for the necessary
amendment’.
[44] The amended defence in the present action
was very different. Paragraph 3
contained a substantive allegation that the incident occurred when the
defendant’s vehicle was travelling at only a few miles per hour, with Mr
Ralph’s report being referred to in this context. Paragraph 4 contained a substantive
allegation that Mr Newman (whose cv and assessment techniques are described)
had reached the conclusions that are set out in [7], above. These included his view that it was very
unlikely that the claimant had suffered injury in the accident.
[45] We cannot help thinking that if the
defence in Cooper’s case had been pleaded along those lines, coupled
perhaps with a general traverse of the assertion that injuries were suffered,
the deputy judge would have been satisfied that the defendants had satisfactorily
pleaded the facts and matters on which they relied. There was no burden on them to prove
fraud. It was sufficient that they set
out fully the facts from which they would be inviting the judge to draw the
inference that the plaintiff had not in fact suffered the injuries he asserted.
[46] But no doubt because of what the deputy
judge said in that case, and the views expressed by local circuit judges in
reliance on that case, the amended defence in the present action continued
along the following lines:
‘5. In those
circumstances, and guided by the opinions of Northern Assessors and Mr Newman,
the defendant’s case is that the claimant is fabricating his symptoms and that
no injuries were truly sustained by them.
314
6. Accordingly the claim
for loss of earnings, prescription charges and miscellaneous expenses are not
admitted and the claimant is put to strict proof.’
[47] We would add that in a discussion with
counsel in Rooney v Graves (7 April 2004, unreported), of which we have
been supplied with a transcript, Judge Stewart QC made a clear distinction
between a case in which the defendant makes an allegation of dishonesty based
on an expert’s report (which in his view entitles the claimant to get his own
expert and to have a hearing, whatever the amount involved), and a case where
the defendant disavows dishonesty and says that this was no part of his case at
all. The judge added:
‘I think we have got to
make it absolutely clear to the Bar and to judges that “you are a liar” is
something that people are entitled to proper notice of because if that is
alleged against them they are entitled, on the face of it, subject to the
individual cases, to have expert evidence in support.’
In the context of the present appeal all we need say is
that in our view, however strongly the defendant’s experts may believe that
because of the theories they hold the accident could not have happened in such
a way as to cause any injury, the defendant does not have to put forward a
substantive case of fraud in order to succeed.
In the present instance the defendant’s case was founded on the
contentions in paras 3 and 4 of the amended defence, from which his
representatives will be inviting the judge at the trial to conclude that the
claimant has not proved what he has set out to prove and therefore to dismiss
the action.
[48] So long as a defendant follows the rules
set out in CPR 16.5 (as this defendant did in those two paragraphs, for which
see [44], above) there is no need for a substantive plea of fraud or fabrication. All that is necessary is to make clear that
an assertion along the lines of what is now para 6 is based on the assertions
in paras 3 and 4. Of course, if the
defendant’s medical examiner has examined the claimant and has concluded on the
basis of the kind of thorough interview and clinical examination advocated by
Mr Nee that there are substantive reasons for disbelieving his account, these
reasons also need to be positively asserted.
[49] If this guidance is followed, then
comments like those of the deputy judge in Cooper’s case about the
possibility of criminal proceedings (see [43], above) and of Judge Tetlow in
the present case as to the possible consequences of a finding of fraud against
a professional man (see [16], above) will not be needed, because there is no
substantive obligation on the defendant to plead fraud so long as his reasons
for resisting the claim are clearly stated in accordance with CPR 16.5.
[50] Finally, it seems appropriate to offer
guidance about ways in which claims like this may be handled more economically
in future. The pre-action protocol
should be followed in all cases. We
would also indorse the suggestion made by Mr Mark Turner QC that in cases of
this kind when intimating a claim the claimant’s advisers should offer access
to their client’s vehicle to the defendant’s insurers for the purpose of early
examination (if they so wish), and give early disclosure (with irrelevant
passages redacted, if necessary) of any contemporaneous GP’s or other relevant
medical notes. This will enable the
defendant’s insurers to get hold of relevant evidential material expeditiously
and inexpensively, as the nature of these claims requires. In turn, it may be desirable
315
for the defendant’s insurers to make it clear that
they regard this as a low velocity impact case in which they will be seeking
more expensive advice than the value of the claim would justify. We were told that it is customary to wait for
up to nine months for such advice, and if they take this step at once (whether
or not they ultimately decide to contest the claim along the lines of the
amended defence in the present case) both parties will know where they stand at
the outset.
[51] It is of course open to the claimant to
make an appropriate CPR Pt 36 offer of settlement as soon as the medical
picture is clear. If it is refused, and
the defendant’s insurers choose to proceed to an expensive trial, they will of
course face the risk, if things go badly for them, of paying interest at an
enhanced rate as well as indemnity costs (CPR 36.21(2) and (3)).
[52] These were the reasons why we dismissed
the appeal.
Appeal dismissed.
Kate
O’Hanlon Barrister.
316
[2006] 2 All ER 317
Pattison v Director of Public Prosecutions
[2005]
EWHC 2938 (Admin)
CRIMINAL; Police, Road Traffic
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
NEWMAN
J
4
NOVEMBER, 15 DECEMBER 2005
Road traffic – Disqualification for holding
licence – Evidence of previous convictions – Certificate of disqualification –
Proof of person named in certificate being person whose conviction to be proved
– Police and Criminal Evidence Act, s 73(1).
A police officer observed a car being driven
erratically and indicated that it should stop.
The car pulled up, the driver climbed into the back seat and the front
seat passenger remained where he was.
When he approached the car the police officer found that both the
occupants smelled of intoxicants and that the engine was still running. The person in the rear seat refused to
accompany the officer to the police car, stating he was not the driver. He gave his details as Steven Pattison, date
of birth 10 June 1978. Police national
computer records disclosed that a person with the same details was a
disqualified driver. He was arrested and
later charged, inter alia, with driving a motor vehicle whilst
disqualified. During interview he denied
having been the driver but on being specifically asked on two separate
occasions whether he was a disqualified driver he made no reply. At the magistrates’ court, the prosecutor handed
in a certificate of conviction relating to Sonny Steven Pattison, born on 10
June 1978, and residing at an address in Leeds, showing a conviction for
driving over the prescribed limit, for which the person to whom the certificate
related had been disqualified from driving.
The defendant gave no evidence.
Section 73(1)a of the Police and
Criminal Evidence Act 1984 provided, inter alia, that the fact that a person
had been convicted of an offence could be proved by producing a certificate of
conviction and proving that the person named in the certificate was the person
whose conviction was to be proved. The
defence submitted, inter alia, relying on authority, that the certificate of
conviction was not sufficient to show that the defendant was a disqualified
driver. The magistrates found that the
defendant was the driver when he was stopped by the police. They were also satisfied beyond reasonable
doubt that the defendant was the same person listed on the memorandum of
conviction because of ‘the uniqueness of both the first and last name, the
agreement of the middle name, the date of birth and the address’. The defendant was convicted and he appealed
by way of case stated. The questions for
the opinion of the court included whether there had been sufficient evidence
before the magistrates to prove that the defendant was a disqualified driver
and properly identified in the memorandum of conviction as a disqualified
driver.
________________________________________
aSection 73, so far as
material, is set out at [11], below
________________________________________
Held – The general principles to be extracted
from authority relating to proof of disqualification by producing a certificate
of conviction to the court were (i) that as with any other essential element of
an offence, the prosecution had to prove to the criminal standard that the
person accused was a disqualified driver; (ii) that
317
it could be proved by any admissible means such as an
admission, even a non-formal one, by the accused; (iii) that if a certificate
of conviction were relied upon pursuant to s 73 of the 1984 Act, then it was an
essential element of the prosecution case that the accused was proved to the
criminal standard to be the person named on that certificate; (iv) that three clear
ways of such proof were proof by an admission by or on behalf of the accused,
proof by the evidence of finger prints, and proof by someone who was present in
court at the time the person was convicted and disqualified being present to
give evidence; (v) that there was, however, no prescribed way that the accused
had to be proved to be the person named on the certificate; it too could be
proved by any admissible means; (vi) that an example of such means was a match
between the personal details of the accused and the personal details recorded
on the certificate of conviction; (vii) that even where the personal details
such as the name of the accused were not uncommon, a match would be sufficient
for a prima facie case; (viii) that in the absence of any evidence
contradicting that prima facie case the evidence would be sufficient for the
court to convict; and (ix) that the failure of the accused to give any
contradictory evidence in rebuttal would be a matter to take into account and
if it were proper to do so and a warning had been given, the failure could
additionally give rise to an adverse inference under the Criminal Justice and
Public Order Act 1994. In the instant
case, the memorandum of conviction had been adduced in admissible form and it
contained a name, date of birth and address which were accepted as being
identical to those of the defendant. The
defendant had been confronted with the allegation that he was a disqualified
driver and had ample opportunity to contradict that, but chose not to do so. Further, the defendant had been obstructive
to the police, from which the justices could properly have inferred that had he
not been disqualified he would have raised the matter. It followed that the justices had been
entitled to conclude that there was a prima facie case that the person referred
to in the memorandum of conviction was the defendant, and, in the absence of
evidence from the defendant, that identity had been proved to the criminal
standard. The appeal would be dismissed
(see [10], [16], [19], [21], [26]–[31], [37], below).
Ellis v Jones [1973] 2 All ER 893, R v
Derwentside Magistrates’ Court, ex p Heaviside [1996] RTR 384, DPP v
Mooney [1997] RTR 434, R v Derwentside Magistrates’ Court, ex p Swift,
R v Derwentside Magistrates’ Court, ex p Bate [1997] RTR 89,
Olakunori v DPP [1998] COD 443, Bailey v DPP (1998) 163 JP 518,
Whitmarsh v DPP (1 March 2000, unreported) and West Yorkshire Probation
Board v Boulter (2005) 169 JP 601 considered.
Notes
For proof by written statement, for certificate proving
previous conviction by fingerprint evidence, for proof of convictions and
acquittals, and for formal admissions, see 11(2) Halsbury’s Laws (4th
edn reissue) paras 1113, 1116, 1117, 1119.
For the Police and Criminal Evidence Act 1984, s 73,
see 18 Halsbury’s Statutes (4th edn) (2005 reissue) 242.
Cases referred to in judgment
Bailey v DPP
(1998) 163 JP 518, DC.
DPP v Mooney [1997]
RTR 434, CA.
Ellis v Jones
[1973] 2 All ER 893, DC.
318
Kingsnorth v DPP,
Denny v DPP [2003] EWHC 768 (Admin), [2003] All ER (D) 235 (Mar).
Moran v Crown
Prosecution Service (2000) 164 JP 562.
Olakunori v DPP
[1998] COD 443, DC.
R v Derwentside
Magistrates’ Court, ex p Heaviside [1996] RTR 384, DC.
R v Derwentside
Magistrates’ Court, ex p Swift, R v Derwentside Magistrates’ Court, ex p
Bate [1997] RTR 89, DC.
R v Lucas [1981]
2 All ER 1008, [1981] QB 720, [1981] 3 WLR 120, CA.
R (on the
application of Howe) v South Durham Justices [2004] EWHC 362
(Admin), (2004) 168 JP 424, DC.
Rowland v Thorpe
[1970] 3 All ER 195, DC.
West Yorkshire
Probation Board v Boulter [2005] EWHC 2342 (Admin), (2005) 169 JP 601, DC.
Whitmarsh v DPP
(1 March 2000, unreported), DC.
Appeal by way of case stated
Sonny Steven Pattison appealed by way of case stated from
a decision of the West Yorkshire Justices sitting at Leeds Magistrates’ Court
on 31 January 2005 by which he was convicted of driving a motor vehicle whilst
disqualified, failing to provide a specimen of breath for analysis and using a
motor vehicle without third party insurance and a MOT test certificate. The questions for the opinion of the court
are set out at [9], below. The facts are
set out in the judgment.
John Elvidge
(instructed by Kingsley Brookes, Huddersfield) for the appellant.
Adrian Waterman
(instructed by the Crown Prosecution Service) for the Director of Public
Prosecutions.
Cur adv
vult
15 December 2005.
The following judgment was delivered.
NEWMAN J.
[1] This is an appeal by way of case stated
from a decision of Leeds Magistrates’ Court.
On 31 January 2005 the West Yorkshire Justices sitting at Leeds
Magistrates’ Court convicted the appellant of driving a motor vehicle whilst
disqualified, failing to provide a specimen of breath for analysis and using a
motor vehicle without third party insurance and an MOT test certificate.
[2] The facts as they appear from the case
stated are that on 18 July 2004 a police officer, PC Long, whilst on mobile
patrol in a marked police car, observed a white Isuzu Trooper motor vehicle
being driven erratically on Vesper Road, Leeds.
He operated the blue lights on his vehicle and indicated for the driver
of the Isuzu vehicle should stop. The
vehicle carried on for a further 300 yards and then pulled up at an angle. The driver of the vehicle was seen to climb
from the driver’s seat into the rear passenger seat. A front seat passenger remained where he
was. The police officer had not lost
sight of the vehicle at any time. On approaching
the car he found the vehicle to contain two persons, both of whom smelt of
intoxicants. The engine of the car was
still running. The officer removed the
car keys and asked the person he had seen driving the car to accompany him to
the police car. The police officer
stated that he had clearly seen the driver of the car ‘with the white T-shirt
and shaved head, climb from the front driver’s seat between the front driver’s
and front passenger seat into the back passenger seat
319
of the car’.
The person in the rear seat refused to accompany him stating that he was
not the driver.
[3] After some time PC Smith and PC Markham
joined him and the person in the rear seat gave his details as Steven Pattison,
born 10 June 1978. The details were run
through the police national computer and the records disclosed that a person with
the same details was a disqualified driver.
Mr Pattison was arrested for driving whilst disqualified and on
suspicion of driving whilst unfit through drink. He was taken to Leeds Bridewell. Mr Pattison failed to provide a sample after
the procedure had been explained to him.
[4] PC Townsley gave more evidence in
connection with the breathalyser and blood procedures which had taken
place. After the procedures had been
explained, there were unsuccessful attempts by Mr Pattison to give a specimen
of breath and he was told to blow continuously until he was told to stop, but
to that he responded stating that he could not because he had asthma. PC Townsley told the magistrates that,
although he was not convinced that Mr Pattison could not blow into the equipment
because of asthma, he accepted that he had a reasonable cause to believe that,
for medical reasons, a specimen of breath could not be provided or should not
be required, so he requested a specimen of blood after explaining the procedure
to him. Mr Pattison refused to provide a
specimen stating that he took steroids.
He was given a second warning and he stated that: ‘No one is sticking
any needles in me, its against my religion to give blood.’ When he was asked for his religion, he
replied: ‘I am a Christian, a gipsy Christian.’
[5] In the course of being interviewed on two
separate occasions, Mr Pattison denied that he was the driver of the vehicle
and he named another person as the driver.
When he was asked whether he was a disqualified driver he gave no
reply. At the hearing before the
magistrates, the prosecutor handed a certificate of conviction relating to
Sonny Steven Pattison, born on 10 June 1978, and residing at 120 Jack Lane,
Hunslet, Leeds LG10 1DW showing a conviction at Leeds Magistrates’ Court on 23
October 2003 for driving over the prescribed limit on 15 October 2003, for
which that person was disqualified from driving for a period of 12 months. Mr Pattison did not give evidence and there
was no evidence called for the defence and the defence case was closed. No warning was given by the court pursuant to
s 35 of the Criminal Justice and Public Order Act 1994 with regard to Mr
Pattison’s failure to give evidence.
[6] Two legal submissions were advanced on
behalf of Mr Pattison to the court: (1) that the memorandum of conviction was
not sufficient to show that the appellant was a disqualified driver. Reliance was placed upon cases including R
v Derwentside Magistrates’ Court, ex p Heaviside [1996] RTR 384 and
Olakunori v DPP [1998] COD 443. (2) It was submitted that, in relation to
failing to provide a sample of breath, once the defence of reasonable excuse
had been raised by the prosecution’s case with evidence from PC Townsley,
conceding that for a medical reason Mr Pattison could not provide a sample of
breath, it was for the prosecutor to disprove it in accordance with the case of
Rowland v Thorpe [1970] 3 All ER 195.
[7] The magistrates found that Mr Pattison was
the driver on 18 July 2004 when PC Long stopped him. There is no appeal against that finding. The magistrates also stated:
‘We were satisfied
beyond reasonable doubt that the defendant Sonny Steve/Steven Pattison was the
same person listed on the memorandum of
320
conviction for the
offence of driving whilst over the prescribed limit with a disqualification of
12 months. The reason for this is the
uniqueness of both the first and last name, the agreement of the middle name,
the date of birth and the address. The
defendant in this case has confirmed his details as being identical.’
[8] As to the charge of failing to provide a
specimen of breath, the conclusion was stated:
‘We were satisfied the
prosecution had proved beyond reasonable doubt that Mr Pattison had failed
without a reasonable excuse to provide a specimen for analysis. He told the police officer that he could not
provide a specimen of breath because he was asthmatic, but went on to refuse to
provide a specimen of blood because he said, firstly that he was taking
steroids and secondly, because of his religious belief as a gipsy Christian. No medical evidence of asthma was placed
before us and the defendant’s response to the request for [a] blood test lead
us to the conclusion that he had no intention of providing any form of
specimen.’
[9] The questions for the opinion of the High
Court are: (1) was there sufficient evidence before the justices, having regard
to Ex p Heaviside, to prove the appellant was a disqualified driver and
properly identified in the memorandum of conviction as a disqualified driver?;
(2) could the justices, upon the facts and law, properly convict the appellant
for the offence of failing to provide specimen or specimens of breath?
[10] The court was informed by counsel for the
prosecution that the change in the law permitting previous convictions to be
put into evidence had increased the occasions upon which proof of conviction,
by producing a certificate of conviction to the court, was required. It was suggested that the instant appeal
provided the court with opportunity to review the various authorities on this
question which had not all been reported and were not thus readily
available. There appears to be advantage
in this course being adopted and I shall, therefore, endeavour to review the
existing authorities and attempt to extract the general principles.
THE LEGAL PRINCIPLES
[11] Section 73(1) of the Police and Criminal
Evidence Act 1984 (PACE) provides:
‘Where in any
proceedings the fact that a person has in the United Kingdom been convicted or
acquitted of an offence otherwise than by a Service court is admissible in
evidence, it may be proved by producing a certificate of conviction or, as the
case may be, of acquittal relating to that offence, and proving that the person
named in the certificate as having been convicted or acquitted of the offence
is the person whose conviction or acquittal of the offence is to be proved.’
[12] It is clear that proof according to the
provision involves two evidential stages: (1) the production of the certificate
of conviction and (2) proof to the criminal standard that the person to whom
that certificate relates is the accused.
321
As to (2), the proof contemplated by the subsection
is not limited to particular defined methods of proof. For example, proof by an admission by or on
behalf of the accused or by the evidence of fingerprints or by someone who was
present in court at the time the person was convicted and disqualified being
present to give evidence. The evidential
issue is at large; proof to the criminal standard will be required that the
person to whom the certificate relates is the person then and there before the
court. Prior to the case of Ex p
Heaviside [1996] RTR 384 there would appear to have been no reason to
believe otherwise. But as Mr Waterman,
counsel for the respondent has pointed out, the Divisional Court in Ex p
Heaviside (McCowan LJ and McKinnon J) were not referred to the case of
Ellis v Jones [1973] 2 All ER 893.
In the latter case, Clive Jones had been charged with making a false
declaration that he had not been working in order to obtain sickness benefit
under the National Insurance Act 1965.
In order to prove that he had been working, a statement from an employer
was put in under s 9 of the Criminal Justice Act 1967 saying ‘I know Clive
Jones’ and listing dates on which he had worked for him. At the close of the prosecution’s case it was
submitted for Mr Jones that there had been no positive evidence to identify him
with the Clive Jones mentioned in the witness statement and an application for
an adjournment to call the employer was refused and the case was
dismissed. On appeal by way of case
stated, the court comprising Lord Widgery CJ, Ashworth and Bridge JJ, it was
held the effect of a statement properly put into court under s 9 of the 1967
Act was the same as if the witness had given it orally from the witness
box. Accordingly, in the absence of any
suggestion that the Clive Jones in the dock and the Clive Jones referred to in
the statement were different people, the matter could only be approached on the
footing that it was the same person who was referred to. It followed that there was a case to answer,
the appeal would be allowed and the case remitted to the justices to continue
the hearing.
[13] It can be seen from the terms of the
judgment that the approach of the court in Ellis v Jones was
robust. The proposition which the court
upheld was stated (at 896) to be, ‘really too obvious to be mentioned’ and the
submission which had been made at the close of the prosecution’s case was
labelled as ‘another example of submissions made by advocates for the defence
in circumstances which are wholly inappropriate and which give rise to a great
deal of waste of time and money’. One
can see from the cases which have followed Ex p Heaviside that the terms
of the judgment have been read as subject to qualification and the reasoning in
Ellis v Jones has been applied.
[14] The particular part of the judgment in
Ex p Heaviside [1996] RTR 384 which has given rise to controversy and
further consideration can be found where McKinnon J stated (at 386–387):
‘As far as I am aware,
it has never been accepted that the mere matching of the personal details,
whether the name, address or date of birth of a defendant, with those upon a
certificate of conviction is sufficient to establish or identify the defendant
as the person earlier convicted. It may
have been the defendant; but, to avoid obvious mistakes being made, strict
proof is required. That is provided by
evidence in one of the three ways I have described.’
322
The three ways to which reference is made are those to
which I have referred in [12], above. By
referring to ‘strict proof’ I take it reference was being made to the criminal
standard of proof.
[15] In R v Derwentside Magistrates’ Court,
ex p Swift, R v Derwentside Magistrates’ Court, ex p Bate [1997] RTR
89, a Divisional Court comprising Staughton LJ and Rougier J, it was observed
that there had been a crop of applications following the decision of the court
in Ex p Heaviside, but the court, with the advantage of having been
referred to the case of Ellis v Jones [1973] 2 All ER 893, went on to
hold, in a case where it was necessary to prove the accused person to be
disqualified, that: (1) the three methods indicated in Ex p Heaviside
were not exhaustive of the means of establishing identity; and (2) the s 9
statement which would have been provided by a police constable was sufficient
to enable the justices to be satisfied that the statement was referring to a
man whom the deponent knew and that he knew him under the name of Bate, namely
the person who was before the court.
Confirmation that the proper approach to s 73(1) of PACE was not limited
to proof by one of the three ways mentioned in Ex p Heaviside next came
in DPP v Mooney [1997] RTR 434 where McCowan LJ sitting with Hidden J in
the Court of Appeal, Criminal Division stated (at 437):
‘I am quite sure that in
[Ex p Heaviside] there was no intention on behalf of the Divisional
Court to say that it was the law that only if there was evidence falling in one
of those three categories could such a case be proved. It was not said that those three methods of
proof were exclusive and, speaking for myself, I was certainly not intending to
say by my agreement with the judgment of McKinnon J. that those three methods
were exclusive.’
[16] It follows that I am entirely satisfied
that the identity of a person on a memorandum of conviction is capable of being
proved by the same multiplicity of ways in which any other essential fact can
be proved in a criminal case.
[17] The next case of significance to which
reference must be made is Olakunori v DPP [1998] COD 443. Lord Bingham CJ with Thomas J considered an
appeal against conviction by magistrates where the evidence which the
magistrates accepted had comprised the following.
(1) The certified extract from the records of South
Western Magistrates’ Court showing that on a date a man named Olatolkubo
Olakunori, born on 25 July 1974, was disqualified.
(2) The appellant’s full name as shown on his birth
certificate was Olatunji Olatokunbo Adeola Olakunori and, according to his
birth certificate, he was born on 25 July 1974.
His passport also showed he used two of those names.
(3) Police officers gave evidence about the appellant
driving the car and the names that he gave when stopped and subsequently at the
police station and during interview.
Thomas J referred to the judgment in Ex p Heaviside to the effect
that there were three ways whereby proof could be advanced and observed: ‘They
are merely examples.’ Reference was made
to the judgment of Rougier J in R v Derwentside Magistrates’ Court, ex p
Swift and the judgment of McCowan LJ in DPP v Mooney. He went on to state:
‘In each case, it is
plainly for the prosecution to adduce evidence from which the justices can be
sure that the person before the court whose conviction has to be proved is the
person named in the certificate of
323
conviction or other
document evidencing the conviction also before the court. It is not of course possible to set out what
in every case can amount to sufficient evidence.’
The judge went on to observe that it may well be the case
that there is no available evidence from someone who was present in the court
when the person was convicted. That in
many cases it might well be difficult to obtain such evidence. The judge observed:
‘In such cases the
prosecution will at the close of their case usually be able to establish a case
to answer by proof of coincidence of the name and date of birth of the person
convicted and the name and date of birth of the defendant. This might not always be the position, as for
example where the names are very common and where there is some material to
indicate the possibility of a mistake.
If the coincidence of names and dates of birth is sufficient to establish
a case to answer, and then there is no evidence from the defendant, the
justices should be able to take into account the provisions of section 35 of
the Criminal Justice and Public Order Act 1994, provided that it is in all the
circumstances fair for them to do so. In
saying that we, of course, emphasise that silence without more proves nothing.
At the conclusion of the evidence the justices are entitled to find—but it is a
matter entirely for them on the facts of each case—that the identity has been
proved. There will be no danger of an
obvious mistake in such a case, as the defendant will have decided not to
adduce evidence of the possibility of any such mistake.’
[18] On the facts in that case Thomas J found
that there were three factors giving rise to a prima facie case: (a) although
the appellant had used different names and different combinations of first name
with his surname, there was a substantial coincidence of names between his
actual name and that on the memorandum of conviction; (b) there was evidence
from an officer that he knew the appellant by the name on the memorandum of
conviction; (c) the appellant had told lies about his identity which the
justices had been entitled to take into account provided they had considered
the relevant questions. Although not
expressly stated, Thomas J was clearly referring to R v Lucas [1981] 2
All ER 1008, [1981] QB 720.
[19] The principle which emerges from the
cases is that it will normally be possible to establish a prima facie case on
the basis of consistency of details between the accused and the person named on
the memorandum of conviction. If the
accused calls no evidence to contradict that prima facie case it will be open
to the court to be satisfied that identity has been proved.
[20] Bailey v DPP (1998) 163 JP 518,
could be seen as inconsistent with the principle I have extracted from the
cases. It was heard shortly before
Olakunori v DPP. The only evidence
adduced to prove the appellant’s disqualification was that the appellant’s
name, date of birth and his sister’s address at which he had at one time lived
appeared on the memorandum of conviction.
It was suggested that few people would have known he was living at his
sister’s address. Importantly, however,
he gave evidence that he knew nothing of this disqualification and he believed
that someone else had used his details.
The court allowed the appeal of the appellant. In doing so, Simon Brown LJ said (at 523):
324
‘there has to be some
evidence which plainly demonstrates that a previous conviction in the
defendant’s name is not possibly explicable, as the appellant here suggested of
this previous conviction, by some other person having given the defendant’s
details both to the police and to the court in respect of the earlier
offence. No such evidence was given
here.’
The magistrates had found the appellant’s evidence
unconvincing, but stated, ‘we preferred the evidence of the respondent’. Simon Brown LJ observed that they appeared to
have ‘overlooked the fact that there was no inconsistency between the evidence
of the respective parties’.
[21] In my judgment, Bailey v DPP does
not affect the principle set out above, but I read it rather as an illustration
of it. Where there is evidence providing
a realistic possible alternative for the fact that the accused’s personal
details appear on the memorandum of conviction then the prosecution may have to
exclude it by evidence other than the consistency of the details on the
memorandum of conviction. Where there is
no evidence of such a realistic alternative, the court is entitled to conclude,
first, that there is a prima facie case and, secondly, that the case is proved.
[22] The principle was applied in Whitmarsh
v DPP (1 March 2000, unreported). A
s 9 statement describing a name, date of birth and address which matched those
of the appellant was adduced together with a memorandum of conviction bearing
the same details. The appellant had been
asked whether he had been disqualified in interview and he gave no reply. He gave no evidence at his trial. The evidence which had been adduced was held
sufficient to prove he was the person named on the memorandum of
conviction. Astill J, with whom
Schiemann LJ agreed, said (para 18):
‘In my judgment,
following Ellis v Jones [1973] 2 All ER 893, that statement in itself
provided evidence upon which the justices could rely to conclude that the
appellant and the person disqualified [on the earlier occasion] were one and
the same person. It provided sufficient
evidence in itself. It certainly
provided, therefore, sufficient evidence for the case to go beyond the end of
the prosecution evidence. At that stage, the appellant chose not to give
evidence. When interviewed he had earlier chosen not to answer any
questions. Once there was a case for him
to answer, then the justices were entitled to draw inferences from his failure
to give evidence under the provisions of s 35 of the Criminal Justice and
Public Order Act 1994. They did so and,
in my judgment, were entitled to convict the appellant on the evidence before
them. But I make it clear that, in my
judgment, there was sufficient evidence to convict this appellant without the
drawing of inferences. The content of
the s 9 statement … provided that evidence.’
[23] Schiemann LJ added (para 20) that, having
been served with the prosecution evidence, apparently naming a person sharing
his name as having been disqualified, ‘it is only sensible for him to lead
evidence to the court to the effect, if it be true, that he is not that
person’.
[24] The cases of Moran v Crown Prosecution
Service (2000) 164 JP 562, Kingsnorth v DPP, Denny v DPP [2003] EWHC
768 (Admin), [2003] All ER (D) 235 (Mar) and R (on the application of
Howe) v South Durham Justices [2004] EWHC 362
325
(Admin), (2004) 168 JP 424 cited by the appellant do
not assist with either the relevant principles or by way of analogy with the
instant facts.
[25] A further recent illustration of the
principle set out above is West Yorkshire Probation Board v Boulter
[2005] EWHC 2342 (Admin), (2005) 169 JP 601.
Justices had before them a person alleged to have breached a community
rehabilitation order where the justices had accepted as proof that that person
was the same person upon whom the original sentence had been passed, the fact
that he had the same name, date of birth and address as the person originally
sentenced. The court (Keene LJ) stated
(at [27]): ‘When magistrates have evidence that the person before them has the
same name, address and date of birth as the person previously convicted, it is
open to them to draw an inference that he is the same person …’ The court added (at [28]):
‘However, in many cases,
where there is such a coincidence of all three factors, one would expect such
an inference to be drawn by the Justices in the absence of any further facts
which cast doubt on such an inference.’
[26] In my judgment the following principles
can be distilled from the cases. (a) As
with any other essential element of an offence, the prosecution must prove to
the criminal standard that the person accused was a disqualified driver. (b) It can be proved by any admissible means
such as an admission (even a non-formal one) by the accused that he was a
disqualified driver. (c) If a certificate of conviction is relied upon pursuant
to s 73 of PACE then it is an essential element of the prosecution case that
the accused is proved to the criminal standard to be the person named on that
certificate. (d) Three clear ways which this can be proved are the three ways
identified in Ex p Heaviside [1996] RTR 384. (e) There is, however, no prescribed way that
this must be proved. It too can be
proved by any admissible means. (f) An example of such means is a match between
the personal details of the accused on the one hand and the personal details
recorded on the certificate of conviction on the other hand. (g) Even in a case where the personal details
such as the name of the accused are not uncommon, a match will be sufficient
for a prima facie case. (h) In the absence of any evidence contradicting this
prima facie case the evidence will be sufficient for the court to convict. (i)
The failure of the accused to give any contradictory evidence in rebuttal will
be a matter to take into account. If it
is proper and fair to do so and a warning has been given, it can additionally
give rise to an adverse inference under s 35(2) of the 1994 Act.
THE FACTS OF THIS APPEAL
[27] The memorandum of conviction was adduced
in admissible form and it contained a name, date of birth and address which
were accepted as being identical to those of the appellant.
[28] The appellant was confronted with the
allegation that he was a disqualified driver and he had ample opportunity to
contradict this, but chose not to do so.
(1) When told he was under arrest for disqualified driving, his denial
was limited to a denial that he had been driving; it contained no denial of
having been disqualified for driving.
(2) When interviewed under caution for the offence of disqualified
driving he made no comment save that he presented a pre-prepared statement. That statement contained no denial of having
been a disqualified driver. He was
specifically asked by the police whether he was a
326
disqualified driver and two separate court orders
disqualifying him were put to him and he continued to make no comment. (3) When
further interviewed about the offence of disqualified driving he did reply to
the questions from the police but, again, made no denial of having been a
disqualified driver. (4) During a trial at which he was being tried
for driving whilst disqualified and in which a memorandum of conviction
containing the details of a person with the same name and date of birth as him
and recorded as living at the same address as him was adduced in evidence, he
chose not to give any evidence. The justices
gave no warning in accordance with s 35(2) of the 1994 Act, but the case stated
discloses they drew no inference.
[29] Further, it can be noted that the
appellant was obstructive to the police.
From that the justices could properly have inferred that had he not been
disqualified he would have raised it.
[30] I am satisfied the justices were entitled
to conclude that there was a prima facie case that the person referred to on
the memorandum of conviction was the appellant and, in the absence of evidence
from the appellant, that identity had been proved to the criminal standard.
[31] It follows that the answer to the first
stated question is Yes.
FAILURE TO PROVIDE SPECIMENS OF BREATH
[32] In Rowland v Thorpe [1970] 3 All
ER 195 the respondent refused to provide a specimen of breath and thereafter
refused to provide a sample for a laboratory test. She gave no reason. The justices acquitted her of failing to
provide a sample of blood or urine, finding that she was distressed as a result
of an earlier incident, there was no female officer or doctor present and she
was embarrassed. The Divisional Court
allowed the prosecution’s appeal. Lord
Parker CJ said (at 197):
‘Of course, once the
defence is raised of reasonable excuse, it is for the prosecution in every case
to negative it, and really the question one asks oneself in the present case is
this: had the prosecution on the evidence negatived the possibility of
reasonable excuse? In all the
circumstances here, bearing in mind the conduct of the respondent, the fact
that she never gave any explanation of her refusal, her behaviour in the police
station, the evidence she gave as regards embarrassment, there was nothing, as
it seems, to me, sufficient to raise in the court any reasonable doubt; in
other words, it inevitably followed that the prosecution had discharged the
burden on them of satisfying the court that there was no reasonable excuse.’
[33] The burden is upon the prosecution, but
the court should take account of all of the facts including that which is
offered by way of excuse by the accused in deciding whether there was, as a
matter of fact, any reasonable excuse.
[34] The appellant’s case is that since PC
Townsley accepted asthma as a medical reason at the time, it was not open to
the magistrates to go behind that contemporaneous conclusion. It is said the appellant could have been
charged with refusing to supply a specimen of blood.
[35] In my judgment, the justices were
entitled to come to the conclusion they did for at least the following reasons.
(i) It is conceded that PC Townsley had indorsed on
the pro forma that he had accepted asthma as a medical reason for the failure,
that the breath test procedure had not been used because a medical reason had
been believed and that he had
327
reasonable cause to believe that, for medical
reasons, a specimen of breath could not be provided or should not be
required. However, this was based
entirely on the word of the appellant at the stage which PC Townsley wrote
those indorsements.
(ii) PC Townsley had made these indorsements before the
appellant went on to refuse to supply a specimen of blood. The justices were entitled to consider all of
the evidence including the overall behaviour of the appellant. Having done so, they were entitled to
conclude that what the appellant had originally told PC Townsley, namely that
he had asthma, was incredible.
(iii) PC Townsley gave evidence which the justices
must have accepted that he had not been convinced that the appellant was unable
to blow into the intoxilyser machine, but had accepted his word at the time.
(iv) Given the later behaviour of the appellant and,
in particular, his stated reasons for refusing a specimen of blood, the
justices were entitled to conclude that PC Townsley had simply given the
appellant the benefit of the doubt and to conclude ‘that he had no intention of
providing any form of specimen’.
[36] The answer to the second stated question
is Yes.
[37] The appeal is dismissed.
Appeal dismissed.
Dilys
Tausz Barrister.
328
[2006] 2 All ER 329
Meadow v General Medical Council
[2006]
EWHC 146 (Admin)
CRIMINAL; Other: PROFESSIONS; Medical
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
COLLINS
J
23,
24, 25, 27 JANUARY, 17 FEBRUARY 2006
Medical Practitioner – Disciplinary panel –
Immunity from suit – Expert giving medical evidence in criminal trial –
Complaint that evidence flawed – Disciplinary proceedings brought – Panel
finding serious professional misconduct proved and ordering erasure of name of
expert – Whether panel having jurisdiction – Whether immunity from suit providing
immunity from disciplinary proceedings.
The appellant was an eminent paediatrician who had
made reports and given evidence in family proceedings and in criminal
proceedings. He was asked to provide a
medical opinion on the deaths of two siblings, both of whom had died when a few
weeks old. The appellant reviewed all
the material provided to him, in particular the medical records and the
findings of the pathologist, and provided a statement in which he concluded that
the deaths were not natural. He was called
to give evidence both at committal proceedings and at the trial in the Crown
Court. The mother of the children was
convicted. It was later discovered that
the results of important and relevant microbiological tests had not been
disclosed by the pathologist. That led
to a successful appeal by the mother. A
second ground of appeal was statistical evidence given by the appellant. Complaint was made to the respondent General
Medical Council (the GMC). The complaint
alleged that the evidence the appellant had given to the criminal court had
been badly flawed, particularly the misuse of statistics. The Fitness to Practise Panel of the GMC
found serious professional misconduct proved and ordered that the appellant’s
name be erased from the register. He
appealed. The issue arose as to whether
the immunity from suit of a witness should be extended to provide immunity from
disciplinary proceedings, and whether there were any qualifications which were
appropriate if that extension was in principle justified.
Held – Immunity from suit of an expert witness
in respect of evidence he gave in a court of law extended to provide immunity
from disciplinary proceedings based on a complaint made by a party or any other
person who had been upset by the evidence given. Public policy based on the need to protect
the administration of justice so required.
The precise boundaries of the immunity would have to established on a
case by case basis but an expert witness could be assured that if he gave his
evidence honestly and in good faith he would not be involved in any proceedings
brought against him seeking to penalise him.
However, if the judge before whom an expert gave evidence (or the Court
of Appeal where appropriate) was satisfied that the expert’s conduct had fallen
so far below what was expected of him as to merit some disciplinary action
there was no reason why his conduct should not be referred by the judge to the
relevant disciplinary body. Such a
referral would not be justified unless the expert witness’s shortcomings were
sufficiently serious for the judge to believe that he might need to be removed
from practice or at least be subjected to conditions regulating his practice
such as a prohibition on acting as an expert witness. In the instant case the complaint against the
appellant should not have been pursued as he had had
329
immunity. The
appeal would therefore be allowed (see [13], [17], [19], [21]–[23], [25]–[27],
[59], below).
Darker (suing as personal representative of
Docker, decd) v Chief Constable of the West Midlands Police [2000] 4
All ER 193 applied.
Notes
For experts duties; in general, and for protection from
proceedings in respect of the evidence given, see 17(1) Halsbury’s Laws
(4th edn reissue) paras 764, 963.
Cases referred to in judgment
Darker (suing
as personal representative of Docker, decd) v Chief Constable of the
West Midlands Police [2000] 4 All ER 193, [2001] 1 AC 435, [2000] 3 WLR
747, HL.
Dawkins v Lord Rokeby
(1875) LR 7 HL 744, [1874–80] All ER Rep 994, HL.
Derby & Co Ltd v
Weldon (No 9) [1990] CA Transcript 878, (1990) Times, 9 November.
Evans v London
Hospital Medical College [1981] 1 All ER 715, [1981] 1 WLR 184.
Hussein v William
Hill Group [2004] EWHC 208 (QB), [2004] All ER (D) 296 (Feb).
J (child abuse:
expert evidence), Re [1991] FCR 193.
Marrinan v Vibart
[1962] 1 All ER 869, [1963] 1 QB 234, [1962] 2 WLR 1224; affd [1962] 3
All ER 380, [1963] 1 QB 528, [1962] 3 WLR 912, CA.
National Justice Cia
Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s
Rep 68; rvsd [1995] 1 Lloyd’s Rep 455, CA.
Pearce v Ove Arup
Partnership Ltd (No 2) [2001] All ER (D) 32 (Nov).
Polivitte Ltd v
Commercial Union Assurance Co plc [1987] 1 Lloyd’s Rep 379.
R v Doheny [1997]
1 Cr App R 369, CA.
R v Skinner
(1772) Lofft 54, 98 ER 529.
Rees v Sinclair
[1974] 1 NZLR 180, NZ CA.
Roy v Prior
[1970] 2 All ER 729, [1971] AC 470, [1970] 3 WLR 202, HL.
Roylance v General
Medical Council (No 2) [2000] 1 AC 311, [1999] 3 WLR 541, PC.
Stanton v Callaghan
[1998] 4 All ER 961, [2000] 1 QB 75, [1999] 2 WLR 745, CA.
Watson v M’Ewan,
Watson v Jones [1905] AC 480, [1904–7] All ER Rep 1, HL.
Whitehouse v Jordan
[1981] 1 All ER 267, [1981] 1 WLR 246, HL.
X (minors)
v Bedfordshire CC, M (a minor) v Newham London BC, E
(a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633,
[1995] 3 WLR 152, HL.
Appeal
Professor Sir Roy Meadow appealed from the decision of the
Fitness to Practise Panel of the General Medical Council (the GMC) finding a
complaint of serious professional misconduct proved and ordering that his name
be erased from the register. The facts
are set out in the judgment.
Nicola Davies QC
and Ian Winter (instructed by Hempsons) for the appellant.
Roger Henderson QC
and Adam Heppinstall (instructed by the GMC) for the GMC.
Cur adv vult
17 February 2006.
The following judgment was delivered.
COLLINS J.
[1] Professor Sir Roy Meadow is an eminent
paediatrician. He is now some 73 years
old and has retired from the clinical practice of medicine. He qualified in 1960 and in 1970 was appointed
to the post of Senior Lecturer and Consultant in
330
Paediatrics and Child Health at Leeds
University. Following his observations
in two cases in which the only explanation for the child’s illness was that it
had been fabricated by a parent, in 1977 he wrote and had published in The
Lancet an article entitled ‘Munchausen syndrome by proxy: the hinterland of
child abuse’.
[2] The article led to awareness in the
medical profession of the possibility that false illnesses in children were
being created and so child abuse was being practised. He continued to research into this area and
in the 1980s began to be used to make reports and give evidence in family
proceedings. In 1991 he was asked for
the first time to produce a report for criminal proceedings and was involved in
the notorious prosecution of Beverley Allitt.
He continued to be used in court, mainly in family proceedings. He gave reports in all in some ten criminal
cases. He maintained a general
paediatric practice and, as the many testimonials which were provided to the
General Medical Council (GMC) and to this court show, he was regarded as a
superb practitioner and teacher. Many
families have cause to be grateful to him for what he did for their children. In 1980 he became Foundation Professor and
Head of the Department of Paediatrics and Child Health at St James’ Hospital in
Leeds. On his retirement from clinical
practice in 1998, he was appointed Emeritus Professor in Child Health at Leeds
University.
[3] Professor Meadow prepared at about the
time of his retirement a paper for publication describing his clinical
experience relating to children who had died because of what was regarded as
child abuse. He sought in that paper to
identify clinical features common to those cases. This paper was in due course published in the
Archives of Disease in Childhood under the title ‘Unnatural sudden infant
death’. As is usual in such
publications, the paper was sent out in draft to be reviewed by his peers. Its relevance will become apparent when I
refer to the evidence which was before the Fitness to Practise Committee of the
GMC against whose decision Professor Meadow appeals in these proceedings.
[4] In 1998 Professor Meadow, whom I shall
henceforth refer to as the appellant, was approached by the Cheshire
Constabulary and asked to provide a medical opinion on the deaths of
Christopher and Harry Clark, sons of Sally Clark, both of whom had died when a
few weeks old. The appellant reviewed
all the material provided to him, in particular the medical records and the
findings of the pathologist, and in June 1999 provided a statement of ten pages
in which he concluded that the deaths were not natural. He was called to give evidence both at the
committal proceedings and at the trial in the Chester Crown Court. Sally Clark was convicted of murder of both
children. She appealed to the Court of
Appeal which upheld the convictions on 2 October 2000. In 2002 it was discovered that the results of
important and relevant microbiological tests had not been disclosed by the
pathologist. This led to a referral to
the Court of Appeal which allowed Sally Clark’s appeal on 29 January 2003. No retrial was ordered.
[5] Complaint was made to the GMC by Sally
Clark’s father against the appellant.
This alleged, broadly speaking, that the evidence he had given to the
criminal courts had been badly flawed, particularly in the misuse of
statistics, and so he deserved to be found guilty of serious professional
misconduct and dealt with accordingly.
The complainant did not suggest that he desired to have him erased from
the register but that he should be prevented from acting as an expert in child
protection cases. In due course,
following a hearing lasting some 16 days between 21 June and 15 July 2005, the
Fitness to Practise Panel (FPP) found serious professional misconduct proved
and ordered that his name be erased
331
from the register.
He appeals both against the finding of serious professional misconduct
and the sanction of erasure.
[6] The decision of the FPP in this case has
concerned medical practitioners who are asked to prepare reports for or to give
evidence in court. Those concerns are
the more acute since the FPP specifically found that the appellant had not intended
to mislead the court and that there was no evidence of any calculated or wilful
failure to use his best endeavours to provide evidence. He had acted in good faith. There can be no doubt that the decision has
had a damaging effect in that it has increased the reluctance of medical
practitioners to involve themselves in court proceedings, particularly in cases
before the family court. In evidence
before the FPP, Professor Sir Alan Craft, the President of the Royal College of
Paediatrics and Child Heath, identified the concerns. They have been reiterated and reinforced in
correspondence sent to the appellant’s solicitors and to the GMC and I am aware
of the real difficulties experienced in the Family Division because of the
reluctance of doctors to produce reports and give evidence. Professor Craft said this:
‘[The campaign against
paediatricians in the field of child abuse] has had an absolutely enormous
effect on paediatricians. Paediatricians
are frightened of getting involved in child protection work … I do not think
you can actually underestimate what being reported to the GMC actually does to
you—and paediatricians, I think, are pretty sensitive people, that is probably
why they are paediatricians—and they do take it incredibly personally when the
letter drops through the door saying that they have been reported to the
GMC. It has a huge effect on them and on
their families and on their children, particularly if there is a press campaign
associated with it which there often is.
Children have been excluded from school, people have had their car tyres
slashed—all sorts of things that are really quite horrible have happened to
paediatricians, so it is not surprising that they are fearful of being involved
in child protection.’
[7] This appeal of course concerns medical
practitioners. But the possibility that
they may be disciplined even to the extent of losing their livelihood will
apply to other professionals who give expert evidence to courts. It is particularly worrying that disciplinary
action may result even if reports have been prepared and evidence given in good
faith and with no intent to mislead.
Accordingly, I received a request from the Expert Witness Institute
(EWI) to allow it to intervene in order to ‘indicate some issues of principle
relating to the duties of expert witnesses in both the criminal and civil
courts’. I indicated that I was prepared
to accept written submissions, provided that both parties to the appeal had no
objection. Unfortunately, there was a
failure by the EWI to notify the parties and the court assumed from the terms
of the letter of request that the parties had been notified. In the result, I received and read the
submissions, which I have taken into account only in so far as they make
submissions on the general duties of expert witnesses and the jurisdiction of
regulatory bodies in disciplining them in respect of evidence given by
them. Mr Henderson QC, on behalf of the
GMC was unhappy at what had happened. He
suggested that, although such interventions are more common in the higher
courts, they should not normally be allowed at the first instance level. However, he recognised that I had read them
and he was able, so far as necessary, to deal with them and so he did not
maintain his objections. I do not need,
therefore, to consider whether they ought to have been admitted. I merely observe that the court should be
332
careful not to allow costs to be increased by
unnecessary interventions and that they should be limited to such interventions
as genuinely assist the court, for example by identifying matters which go
beyond the circumstances of the case in question and raise arguments which
might otherwise not be properly considered.
[8] Before going to the circumstances in more
detail, I should deal at the outset with a point that I raised but which was
not taken either before the FPP or in the grounds of appeal. However, since it goes to the jurisdiction of
the FPP to deal with a complaint such as that made against the appellant, it
seemed to me that it was a point which ought to be considered, particularly as
it might be determinative of this appeal.
[9] The point is based on the immunity from
suit of a witness in respect of evidence he gives in a court of law. That immunity applies as much to an expert as
to any other witness (see X (minors) v Bedfordshire CC, M
(a minor) v Newham London BC, E (a minor) v
Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633 approving Evans v London
Hospital Medical College [1981] 1 All ER 715, [1981] 1 WLR 184). The immunity extends to any civil proceedings
brought against a defendant which are based on the evidence which he gives to a
court. It extends to any statement which
the witness makes for the purpose of giving evidence.
[10] The immunity has not been extended to
prevent the bringing of disciplinary proceedings. That seems to be because the argument has not
hitherto been deployed that the rationale that lies behind the grant of
immunity from suit should apply equally to such disciplinary proceedings. It is clear that proceedings before the GMC
have been brought in the past which have certainly included heads of charge
based on evidence given, but most seem to have been based on other conduct as
well. And it is clear that to produce a
report or to give information which is sufficiently flawed as properly to be
regarded as serious professional misconduct will not attract immunity even
though it is used as the basis for evidence given subsequently. The report must have been prepared with a
view to its being used or in the knowledge that it will probably be used in
evidence in court. This distinction is
important and is recognised in the authorities, in particular in the recent
decision of the House of Lords in Darker (suing as personal
representative of Docker, decd) v Chief Constable of the West Midlands
Police [2000] 4 All ER 193, [2001] 1 AC 435, a case to which I will have to
return. That case was concerned with a
claim that police officers had fabricated evidence against the claimants. Lord Hope of Craighead referred ([2000] 4 All
ER 193 at 198, [2001] 1 AC 435 at 449) to—
‘the distinction …
between the act itself and the evidence that may be given about the act or its
consequences. The distinction rests upon
the fact that acts which are calculated to create or produce false evidence or
to destroy evidence have an independent existence from, and are extraneous to,
the evidence that may be given as to the consequences of those acts. It is unlikely that those who have fabricated
or destroyed evidence would wish to enter the witness box for the purpose of
admitting to their acts of fabrication or destruction. Their acts were done with a view to the
giving of evidence not about the acts themselves but about their
consequences. The position is different
where the allegation relates to the content of the evidence or the content of
statements made with a view to giving evidence, and not to the doing of an act
such as the creation or the fabrication of evidence.’
333
[11] The distinction may, as Lord Hutton
observed ([2000] 4 All ER 193 at 217, [2001] 1 AC 435 at 469), appear in
practice to be a fine one. He gives the
example of the officer who falsely states in evidence that the defendant made a
confession, who would be immune, and the officer who fabricates a note containing
an admission which the defendant never made, who would not be immune in respect
of proceedings based on the fabricated notes.
While Darker’s case was concerned with misfeasance in public
office and conspiring to injure and so bad faith, there seems no reason why the
principle should not apply in an appropriate case to negligent acts as well as
to dishonest ones.
[12] It is accepted by Mr Henderson that the
appellant would be immune from civil suit in respect of the matters alleged
against him in the disciplinary proceedings.
The lengthy and detailed heads of charge were based on and substantially
limited to the statements he had made for the purpose of giving expert evidence
and the evidence he had given in the committal proceedings and the trial of
Sally Clark for the murder of two of her children. This case therefore raises directly the
question whether immunity from suit should be extended to provide immunity from
disciplinary proceedings and, if so, whether there are any qualifications which
are appropriate if that extension is in principle justified.
[13] Immunity from suit extends to the honest
as well as the dishonest witness. It is
based on public policy which requires that witnesses should not be deterred
from giving evidence by the fear of litigation at the suit of those who may
feel that the evidence has damaged them unjustifiably. It is not the result of the litigation that
matters but the burden upon the witness of having to defend himself whether or
not he may be confident of the outcome. Stanton
v Callaghan [1998] 4 All ER 961, [2000] 1 QB 75 concerned the immunity of a
structural engineer who had produced a report, said to have been prepared
negligently, in respect of a claim which had had to be withdrawn when its
deficiencies were identified following a joint meeting of experts. The Court of Appeal upheld the striking out
of the claim. Otton LJ said this ([1998]
4 All ER 961 at 989, [2000] 1 QB 75 at 107):
‘I pause here to note
that immunity is not granted primarily for the benefit of the individuals who
seek it. They themselves are
beneficiaries of the overarching public interest, which can be expressed as the
need to ensure that the administration of justice is not impeded. This is the consideration which should be
paramount. And it is not only the
conduct of the immediate hearing which we should consider to be the
“administration of justice”. This is not
a narrowly-drawn phrase: it is best served by a purposive construction. In this I agree with Lord Wilberforce, who
said in Roy v Prior [1970] 2 All ER 729 at 736, [1971] AC 470 at 480:
“Immunities conferred by the law in respect of legal proceedings need always to
be checked against a broad view of the public interest.”
Each party who comes, or
is about to come, before a court is participating in an event which supervenes
individual concerns and interests. When
we are concerned with the proper and smooth administration of justice through
our legal system we should not seek to place burdens on those who participate
in it at any stage. Thus I do not think
it necessary to make distinctions between the various reasons which have been
given to justify the granting of immunity and approach this situation in an
algorithmic fashion and say that some reasons should apply to some cases but
not to others; the case is best approached by asking the simple question: would
it
334
serve the interests of
the administration of justice to grant immunity? To answer this question we need to examine
the role and place of an expert in the legal system.’
[14] Otton LJ went on to point out that an
expert witness owes a duty to the court which overrides that to his
client. Accordingly, he should not be
vulnerable to claims from disgruntled clients.
That was the main consideration in Stanton v Callaghan, but Otton
LJ’s observations are, as he himself recognised, applicable generally. Nourse LJ, after noting that the extent of an
expert witness’s immunity from suit was still in course of development and
would and should be developed on a case by case basis, said this ([1998] 4 All
ER 961 at 991, [2000] 1 QB 75 at 109):
‘I see no justification
for distinguishing between an expert and a lay witness, either on the ground
that the expert is usually remunerated for his services or on the ground that
he may be less likely than a lay witness to be deterred from giving
evidence. Nor would I make any
distinction between civil and criminal proceedings. An immunity founded on a requirement of
public policy that witnesses should not be inhibited from giving frank and
fearless evidence cannot afford to make distinctions such as these. If they were allowed, it would never be
certain that the public policy would not sometimes be put at risk.’
[15] Immunity, as I have said, extends to the
dishonest as well as the honest witness.
The dishonest may be guilty of the criminal offence of perjury and can
be prosecuted if sufficient evidence exists.
But, if such evidence is not available (for example, because there is no
independent corroboration), the immunity exists because of the requirement that
a witness should be able to give evidence free from fear of any reprisal. The public policy states that the need to
protect the honest witness may result in immunity for the dishonest, but the
balance between the right of an individual to make a claim and the need in the
interest of the administration of justice to ensure that witnesses give
evidence in the knowledge that they cannot be subjected to action which may
seek to penalise them is struck by giving priority to the latter. In Darker (suing as personal representative
of Docker, decd) v Chief Constable of the West Midlands Police
[2000] 4 All ER 193 at 212, [2001] 1 AC 435 at 464, Lord Hutton put it thus:
‘The reason for the rule
is grounded in public policy: it is to protect a witness who has given evidence
in good faith in court from being harassed and vexed by an action for
defamation brought against him in respect of the words which he has spoken in
the witness box. If this protection were
not given persons required to give evidence in other cases might be deterred
from doing so by the fear of an action for defamation. And in order to shield honest witnesses from
the vexation of having to defend actions against them and to rebut an
allegation that they were activated by malice the courts have decided that it
is necessary to grant absolute immunity to witnesses in respect of their words
in court even though this means that the shield covers the malicious and
dishonest witness as well as the honest one.’
[16] Although Lord Hutton was referring
specifically to actions for defamation, it is clear that the public policy
which grants immunity extends for the same reason to any action brought,
whether or not it alleges malice, bad faith or dishonesty. The rule has a long history. In R v Skinner (1772) Lofft 54 at 56,
98 ER 529 at 530, Lord Mansfield observed: ‘Neither party, witness, counsel,
jury
335
or judge can be put to answer, civilly or criminally,
for words spoken in office.’ In respect
of witnesses, ‘in office’ can only refer to giving evidence. The only qualification to this is a
prosecution for perjury or, possibly, an attempt to pervert the course of
justice. In Watson v M’Ewan, Watson v
Jones [1905] AC 480 at 486, [1904–7] All ER Rep 1 at 3, Lord Halsbury LC
observed:
‘The broad proposition I
entertain no doubt about, and it seems to me to be the only question that
properly arises here; as to the immunity of a witness for evidence given in a
court of justice, it is too late to argue that as if it were doubtful. By complete authority, including the
authority of this House [see Dawkins v Lord Rokeby (1875) LR 7 HL 744,
[1874–80] All ER Rep 994] it has been decided that the privilege of a witness,
the immunity from responsibility in an action where evidence has been given by
him in a court of justice, is too well established now to be shaken. Practically I may say that in my view it is
absolutely unarguable—it is settled law and cannot be doubted. The remedy against a witness who has given
evidence which is false and injurious to another is to indict him for perjury;
but for very obvious reasons, the conduct of legal procedure by courts of
justice, with the necessity of compelling witnesses to attend, involves as one
of the necessities of the administration of justice the immunity of witnesses from
actions brought against them in respect of evidence they have given. So far the matter, I think, is too plain for
argument.’
[17] There is clear evidence before me, and
common sense points in the same direction, that the possibility of disciplinary
proceedings based on a complaint by someone affected by the evidence given has
a serious deterrent effect. It is in
those circumstances difficult to follow why the public policy based on the need
to protect the administration of justice should not prevent disciplinary
proceedings. They can result in
penalties which are more serious than an award of damages and have the effect
on the practitioner which was described by Professor Craft.
[18] It is, however, to be noted that in
Darker’s case the House of Lords was at pains to state that the protection
should not be given any wider application than was absolutely necessary in the
interests of the administration of justice (see [2000] 4 All ER 193 at 202,
[2001] 1 AC 435 at 453 per Lord Cooke of Thorndon, citing observations of Sir
Thaddeus McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 at 187). Lord Clyde dealt with the matter more
extensively (see [2000] 4 All ER 193 at 205–206, [2001] 1 AC 435 at 456–457),
saying:
‘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. As McCarthy P observed in Rees v Sinclair [1974]
1 NZLR 180 at 187: “The protection should not be given any wider application
than is absolutely necessary in the interests of the administration of justice
…” Furthermore, the idea of a universal
immunity attaching to a person in the performance of some particular function
requires to be entertained with some caution.
As Lord Wilberforce observed in [Roy v Prior [1970] 2 All ER 729
at 736, [1971] AC 470 at 480]: “Immunities conferred by the law in respect of
legal proceedings need always to be checked against a broad view of the
336
public interest.” Once a situation has been identified as
deserving of immunity it may readily be accepted that the immunity is in its
quality absolute. But the process of
identification may require to be undertaken with a particular eye to an
evaluation of the public interests involved.
The quality of an immunity may be absolute, but its application may not
be invariable.
On the other hand there
has to be some degree of certainty about the existence of an immunity for it to
be effective. The matter cannot be
entirely left as one to be determined on each and every occasion. For the immunity of a witness to be effective
it is necessary that the person concerned should know in advance with some
certainty that what he or she says will be protected. So even although the matter may depend in any
case upon a balancing of interests it ought to be possible to predict with some
confidence whether or not an immunity will apply. The law has sought to achieve this by making
it clear that the substance of the evidence presented to the court in judicial proceedings
will be immune from attack. But a more
difficult question arises with regard to the preparation of material and the
investigation of a case before the matter comes before the court.
Two reasons can be
identified for the justification for granting an immunity to witnesses from
civil process. They were expressed by
Lord Wilberforce in [Roy v Prior [1970] 2 All ER 729 at 736, [1971] AC
470 at 480] in these terms:
“The reasons why immunity is traditionally (and for
this purpose I accept the tradition) conferred upon witnesses in respect of
evidence given in court, are in order that they may give their evidence
fearlessly and to avoid a multiplicity of actions in which the value or the
truth of their evidence would be tried over again.”
So far as the first of
these reasons is concerned it may be considered necessary that witnesses should
be granted an immunity so as to secure that they may enjoy a freedom to express
themselves without fear of any consequences to themselves. In the interests of the judicial process a
witness should not be exposed to the risk of having his or her evidence
challenged in another process. Those
engaged in the judicial process should be under no restraint from saying what
has to be said and doing what has to be done for the proper conduct of that
process. As Salmon J observed in [Marrinan
v Vibart [1962] 1 All ER 869 at 871, [1963] 1 QB 234 at 237]:
“This immunity exists for the benefit of the public,
since the administration of justice would be greatly impeded if witnesses were
to be in fear that any disgruntled and possibly impecunious persons against
whom they gave evidence might subsequently involve them in costly litigation.”’
[19] I would emphasise the sentence: ‘In the
interests of the judicial process a witness should not be exposed to the risk
of having his or her evidence challenged in another process.’ While all the authorities have concerned
immunity from suit, the rationale behind the rule which is recognised by that
observation leads me to the view that not only is there no reason in principle why
it should not apply to disciplinary proceedings such as those with which this
appeal is concerned but every reason why it should so apply. There can be no doubt that the administration
of justice has been seriously damaged by the decision of the
337
FPP in this case and the damage will continue unless
it is made clear that such proceedings need not be feared by the expert
witness.
[20] I recognise that there is a public
interest in play here which goes beyond the rights of others to a legal
remedy. That is the need to ensure that
public confidence in the profession is maintained and that no practitioners who
have shown themselves to have fallen below the standards required should be
able to continue to practise uncontrolled.
Any expert witness will know that he has a duty to the court and must
bear in mind his obligations in that regard.
They are helpfully set out in a passage from the judgment of Cresswell J
in National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The
Ikarian Reefer [1993] 2 Lloyd’s Rep 68 at 81–82:
‘The duties and
responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should
be, and should be seen to be, the independent product of the expert
uninfluenced as to form or content by the exigencies of litigation ([Whitehouse
v Jordan [1981] 1 All ER 267 at 276, [1981] 1 WLR 246 at 256–257] per Lord
Wilberforce).
2. An expert witness should provide independent
assistance to the court by way of objective unbiased opinion in relation to
matters within his expertise (see [Polivitte Ltd v Commercial Union
Assurance Co plc [1987] 1 Lloyds Rep 379 at 386 per Mr Justice Garland and
Re J (child abuse: expert evidence) [1991] FCR 193 per Mr
Justice Cazalet]). An expert witness in
the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or
assumption upon which his opinion is based.
He should not omit to consider material facts which could detract from
his concluded opinion (Re J).
4. An expert witness should make it clear when a
particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly
researched because he considers that insufficient data is available, then this
must be stated with an indication that the opinion is no more than a
provisional one (Re J). In cases
where an expert witness who has prepared a report could not assert that the
report contained the truth, the whole truth and nothing but the truth without
some qualification, that qualification should be stated in the report ([Derby
& Co Ltd v Weldon (No 9) [1990] CA Transcript 878, (1990) Times,
9 November] per Lord Justice Staughton).
6. If, after exchange of reports, an expert
witness changes his view on a material matter having read the other side’s
expert’s report or for any other reason, such change of view should be
communicated (through legal representatives) to the other side without delay
and when appropriate to the Court.
7. Where expert evidence refers to photographs,
plans, calculations, analyses, measurements, survey reports or other similar
documents, these must be provided to the opposite party at the same time as the
exchange of reports: see para 15.5 of the Guide to Commercial Court Practice.’
In addition, he will know that he must give evidence
honestly and in good faith and must not deliberately mislead the court. He will not expect to receive protection if
he is dishonest or malicious or deliberately misleading.
[21] Since I am applying a principle based on public
policy to grant an immunity which has not hitherto been explicitly recognised,
I can, I think,
338
consider whether public policy requires that an
absolute immunity should be granted. The
approach of their Lordships in Darker (suing as personal representative
of Docker, decd) v Chief Constable of the West Midlands Police
[2000] 4 All ER 193, [2001] 1 AC 435 indicates that immunity from suit, in
respect of which the law has granted absolute immunity, should be confined as
narrowly as reasonably possible. That
approach and the need to balance the countervailing public interests persuades
me that a blanket immunity is not necessary.
Barristers and solicitors owe duties to the court and may be subjected
to disciplinary action in respect of their conduct in litigation. That does not inhibit them because they know
that they must maintain the necessary standards before the court and will be
liable to action if they do not. But
witnesses are in a somewhat different position, particularly when they become
involved in litigation fortuitously, perhaps because as a doctor they treated a
particular child and abuse is suspected.
[22] In my judgment, the immunity has to cover
proceedings based on a complaint (whether or not it alleges bad faith or
dishonesty) made by a party or any other person who may have been upset by the
evidence given. Public policy, as
reflected in the observations of the various judges which I have cited,
requires at least that. But I see no
reason why the judge before whom the expert gives evidence (or the Court of
Appeal when that may be appropriate) should not refer his conduct to the
relevant disciplinary body if satisfied that his conduct has fallen so far
below what is expected of him as to merit some disciplinary action. I note that such referrals have been made,
although I do not think the immunity point has been argued (see Hussein v
William Hill Group [2004] EWHC 208 (QB), [2004] All ER (D) 296 (Feb) per
Hallett J and Pearce v Ove Arup Partnership Ltd (No 2) [2001] All
ER (D) 32 (Nov) per Jacob J). In
Pearce’s case (at [61]), Jacob J said this:
‘I see no reason why a
judge who has formed an opinion that an expert had seriously broken his Pt 35
duty should not, in an appropriate case, refer the matter to the expert’s
professional body if he or she has one.
Whether there is a breach of the expert’s professional rules and if so
what sanction is appropriate would be a matter for the body concerned.’
The witness should, as Jacob J stated, be given an
opportunity to make representations before any referral took place.
[23] Such a referral would not be justified
unless the witness’s shortcomings were sufficiently serious for the judge to
believe that he might need to be removed from practice or at least be subjected
to conditions regulating his practice such as a prohibition on acting as an
expert witness. Normally, evidence given
honestly and in good faith would not merit a referral. Mr Henderson was concerned that to draw the
line at dishonesty or recklessness could mean that a practitioner who gave
seriously defective evidence which was honestly given but resulted from for
example ill health was able to continue in practice to the danger of the
public. I recognise that possibility:
the judge is likely also to recognise it if it arises in any given case.
[24] No system can be perfect. It is, as Mr Henderson submitted, at least in
theory possible that a practitioner whose shortcomings are not recognised by
the court may escape deserved sanctions.
This would particularly be so if the practitioner did not give evidence
because court proceedings were, as in Stanton v Callaghan [1998] 4 All
ER 961, [2000] 1 QB 75, never pursued.
However, I think that this problem is more theoretical than real. It is unlikely that a single case involving a
poor report or evidence would on its own show that the practitioner was unfit
to practise and so a danger to the public.
His report would become
339
known and he would not be invited to give evidence in
the future. Further, if he was so poor,
he would be likely to show his defects in a subsequent case. Mr Henderson raised the issue of
accreditation which, for example, would affect a pathologist. Could he be removed from the list of those
entitled to act for the Home Office on the basis of poor evidence in a
particular case? The answer must be that
he could. Just as a private client is
entitled to cease to instruct an expert if dissatisfied with his performance so
can the Home Office. If that is done, he
has a right of appeal.
[25] The precise boundaries of the immunity
will have to be established on a case by case basis. For example, where serious defects in the
expert’s evidence only come to light after a court hearing, it may be possible
to go back to the judge to ask him to consider a referral. If there is an appeal, the Court of Appeal
can take the necessary action. But what
is of fundamental importance is that a witness can be assured that if he gives
his evidence honestly and in good faith, he will not be involved in any
proceedings brought against him seeking to penalise him. The risk of a judge deciding that there
should be a referral in such circumstances is so remote as to be virtually
non-existent.
[26] I have no doubt that the complaint
against the appellant should not have been pursued. Since it was based upon his evidence in
court, he had immunity. Mr Henderson
submitted that this was to run counter to the requirement imposed by Parliament
that the GMC investigate any complaint made to it. But I see no problem; a complaint can only be
pursued if the law permits it. In the
case of a complaint made against an expert which arises from evidence he has
given in court, the law prohibits, save in the circumstances I have indicated,
the matter being pursued. If the
complaint does relate to the evidence or the preparation of evidence, the GMC
must bring it to an end. A similar
procedure must be applied by other disciplinary bodies. The result will be that experts can give
evidence free from the fear of subsequent disciplinary action unless they act
so contrary to their obligations to their profession and to the court that the
court decides to make a complaint. Only
in such circumstances will disciplinary action be permissible.
[27] It follows that the appeal against the
finding of serious professional misconduct must be allowed since the FPP should
not have considered the complaint.
[28] Since this case may go further, I must
deal with the matter on the assumption that the FPP was entitled to consider
the complaint. The allegations did not
touch on the appellant’s skills as a doctor nor did they impugn his conclusions
which were based on the pathological findings.
He was found guilty of serious professional misconduct because he had
relied on statistical material in a way which was flawed and had, it was
alleged, not disclosed that he was not a statistician and had no expertise in
the understanding or application of statistics.
His evidence had been badly wrong in misusing statistics to conclude
that the chances of a second natural death occurring in a family were
minuscule, amounting to 1 in 73 million.
This evidence may have influenced the jury to convict of murder.
[29] That conduct which is not directly
connected with a doctor’s practice as such can amount to serious professional
misconduct cannot be doubted. Any
conduct which brings the profession into disrepute is capable of justifying
disciplinary action. In Roylance v
General Medical Council (No 2) [2000] 1 AC 311, [1999] 3 WLR 541,
Lord Clyde, giving the judgment of the Privy Council, observed that misconduct
involved acts or omissions which fell short of what was
340
proper in the circumstances and that the standard of
propriety might often be found by reference to the rules and standards normally
required to be followed. It must be
serious and must be linked to the profession of medicine. He pointed out that conduct removed from the
practice of medicine might qualify if it was of a sufficiently immoral or
outrageous or disgraceful character.
This was because the public reputation of and public confidence in the
profession could be adversely affected.
Dr Roylance was the chief executive of a hospital in which there had
been excessive mortality rates of children who underwent cardiac surgery and
had failed to take steps to deal with the problem. His conduct was not in the class of moral
turpitude or of so outrageous a nature as to bring the profession into
disrepute. Nevertheless, he was properly
convicted since he could not divorce his duties as a medical practitioner from
those as an administrator.
[30] There is equally no doubt that bad faith
is not necessary for a finding of serious professional misconduct. Thus, for example, negligence may suffice,
but it must be negligence to a high degree.
The test has been described as conduct which would be regarded as
deplorable by fellow practitioners or properly informed members of the
public. The same test is likely to
remain despite the amendments to the legislation, but I do not need to go into
that.
[31] An appeal under s 40 of the Medical Act
1983 is not limited to a review (see CPR 52.11 and para 22 of the Practice
Direction). However, this court will not
interfere unless persuaded that a decision, whether in respect of a finding of
misconduct or the sanction imposed, is clearly wrong. I need not cite the various authorities to
which I have been referred. Suffice it
to say that that is the test which is applied.
I prefer to place no further gloss upon it.
[32] The appellant’s statement in the criminal
proceedings contained the following paragraphs under the heading ‘Two infant
deaths in one family’:
‘Even when an infant
dies suddenly and unexpectedly in early life and no cause is found at autopsy,
and the reason for death is thought to be an unidentified natural cause (Sudden
Infant Death Syndrome) [SIDS], it is extremely rare for that to happen again
within a family. For example, such a
happening may occur 1:1000 infants, therefore the chance of it happening twice
within a family is 1:1,000,000.
Neither of these two
deaths can be classified as SIDS. Each
of the deaths was unusual and had the circumstances of a death caused by a
parent.’
It will therefore be apparent that the statistic was not
of itself material to the appellant’s opinion that the deaths were not natural. But it obviously tended to negative a defence
that the deaths resulted from SIDS and may well have persuaded a layman that
the risk of two natural deaths of unknown cause was very small indeed and so it
supported the view that these were not natural deaths. The statistical error was obvious from the
squaring of the 1:1,000 to make 1:1,000,000.
Such squaring is only permissible if the two events are truly
independent. Since in families there are
bound to be other matters to be taken into account, such as genetic or
environmental factors, squaring is inappropriate. An example of a truly independent event
(assuming, I suppose, no variation in the way in which it is tossed) is the
tossing of a coin. Each time, the
chances of landing the same side will be squared. Indeed, the evidence given before the FPP by
a statistician indicated that dependence should always be assumed and that it
would have to be disproved before squaring of the risk of a second event was a
valid exercise.
341
[33] That statement was made on 5 June 1998
and was read out in the committal proceedings as the appellant’s
evidence-in-chief. This was on 25 May
1999. In the course of his evidence, he
referred to the paper I have mentioned (at [3], above), which was published in
January 1999. It was a study of 81
children who were initially thought to have died of natural causes but were
subsequently adjudged by either criminal or family courts to have been killed
by a parent.
[34] He was cross-examined by Mr Kelsey-Fry
(now QC), junior counsel representing Sally Clark. He put to the appellant various research
papers which he suggested showed that the risk was higher. Those the appellant did not believe were
reliable since they did not deal with true cases of SIDS because in many there
were other possible causes, both natural or unnatural. But he was not challenged on his use of
statistics. He was asked:
‘Am I right in thinking
that, in the event of a family suffering a cot death, a SIDS, an unexplained
death, research shows that the chances of a repeat occurrence once the first
has happened, of course, the chances of a repeat occurrence are effectively the
same? In other words, the fact that
there is one, does not enhance the chance of another?’
The appellant agreed.
It was then suggested that research showed that such a risk was less
than 1:1,000,000, but the appellant did not accept that that was so. Mr Kelsey-Fry did not challenge the squaring
exercise or suggest that it was flawed.
[35] In August 1999, Professor Fleming, Professor
of Infant Health and Development Physiology at the Institute of Child Health at
Bristol University, asked the appellant to write the preface to a report on a
three-year study, which had been commissioned by the Department of Health
investigating factors contributing to sudden unexpected deaths in infancy. It was known as the Confidential Enquiry into
Stillbirths and Deaths in Infancy (the CESDI study). The appellant agreed to Professor Fleming’s
request and on 14 August 1999 was sent a pre-publication draft of the
report. It was a most ambitious and
extensive project and had examined some 472,823 live births over a three-year
period.
[36] It contained an assessment of infants and
families at risk of SIDS. I should, I
think, set the relevant passage out in full:
‘Overall in the
population included in this study the SIDS rate was 0·768 per 1000 live
births—ie approximately one baby in 1300 died as SIDS. From our data it is possible to identify
within the population a number of factors which are associated with an
increased risk of SIDS. The
identification of families at higher risk of SIDS is of importance in allowing
the appropriate deployment of scarce health care resources, and in attempting
to achieve changes in lifestyle or patterns of childcare that might reduce this
risk. For families already at low risk,
knowledge of the factors influencing risk may help to provide reassurance and
encouragement in continuing appropriate patterns of care.
Table 3.6.1 shows three
factors that are associated with an increased risk of SIDS in both univariate
and all multivariate models, and the likely effect of
342
the presence or absence
of each factor on the incidence of SIDS, along with effect when combining these
factors.
Table 3.6.1 SIDS rates for different factors based on
the data from the CESDI SUDI [Sudden Unexpected Deaths in Infancy] study
SIDS rate per 1000 live births*
SIDS incidence in this group*
Overall rate in the study population
0·768
1 in 1303
Rate for groups with different factors
Anybody smokes in the household
1·357
1 in 737
Nobody smokes in the household
0·199
1 in 5041
No waged income in household
2·057
1 in 486
At least one waged income in household
0·479
1 in 2088
Mother <27 years and parity>.1
1·762
1 in 567
Mother>26 years or parity=1
0·531
1 in 1882
None of these factors
0·117
1 in 8543
One of these factors
0·619
1 in 1616
Two of these factors
1·678
1 in 596
All three of these factors
4·674
1 in 214
*Based on the number of live births in each study region
from 1993 to 1995 inclusive (OPCS)
Thus an infant living in
a household in which nobody smoked had a risk of SIDS of around 1 in 5000,
whilst if anyone in the household smoked this risk rose to around 1 in
700. Similarly for an infant in a
household in which there was no waged income, the risk was around 1 in 500,
compared with 1 in 2000 if there was a waged income.
343
The correlation between
the factors was taken into account when more than one factor was used to
calculate the rate, but, because all three factors are independently
significant in the multivariate analyses, the presence of more than one will
have an increased effect.
Thus it can be seen that
for infants in families in which all three factors are present the risk of SIDS
was 1 in 214, compared with a risk of 1 in 8543 for infants in families with
none of the factors—ie a forty-fold difference in risk.
Since the factors will
generally remain the same (with the possible exception of maternal age below 27
years) for a subsequent child, the risk of SIDS to a subsequent child in a
family in which one infant has already died will range from 1 in 214 to 1 in
8543. This does not take account of
possible familial incidence of factors other than those included in the above
table.
For a family with none
of these three factors, the risk of two infants dying as SIDS by chance alone
will thus be 1 in (8543 8543) ie
approximately 1 in 73 million. For a
family with all three factors the risk will be 1 in (214 214) ie approximately 1 in 46,000. Thus, for families with several known risk
factors for SIDS, a second SIDS death, whilst uncommon, is 1600 times more
likely than for families with no such factors.
Where additional adverse factors are present, the recurrence risk would
correspondingly be greater still.
Whilst child abuse and
non-accidental injury are associated with many of the same factors as an
increased risk of SIDS, the increased risk in the above calculation is derived
from a population in which careful attempts have been made to exclude those
deaths for which abuse by a parent or carer was identified as a probable casual
factor. When a second SIDS death occurs
in the same family, in addition to careful search for inherited disorder there
must always be a very thorough investigation of the circumstances—though it
would be inappropriate to assume maltreatment was always the cause.’
In due course, the table, but not, it seems, the text, was
put before the jury at the Crown Court.
It was the appellant’s evidence based on his understanding of this that
was largely the source of the complaint which led to the finding of serious
professional misconduct.
[37] On 4 October 1999, shortly before the
trial was due to commence, the appellant was requested to and did attend a
meeting resulting from the disclosure of the defence medical reports. The meeting was largely concerned with
pathology, but there was a discussion about SIDS because it was believed that
the defence might rely on SIDS. In fact,
they did not. However, on 5 October
1999, the appellant produced a short hand-written supplementary statement which
read:
‘Since writing my
report, I have read the reports of other medical experts.
Apart from
non-accidental injury, no likely specific medical cause of death has been
proposed. Thus it is suggested that the
deaths of both children should be considered as examples of SIDS.
The likelihood of SIDS
rises with social circumstances. The
most recent estimation of the incidence in England, is that for a family in
which the parents do not smoke, in which at least one has a waged income, and
in which the mother is over the age of 26 years, the risk is 1 in 8543 live
births.
Thus the chance of two
infant deaths within such a family being SIDS is 1 in 73,000,000.’
344
As will be obvious, this was based on the extract from the
CESDI study which I have already cited.
It was a statement based on a misunderstanding of the significance of
the squaring. The squaring was not
intended to be a guide to the risk of recurrence. The figures given were estimates based on a
mathematical modelling and were not observed rates. Since independence could
not be assumed, the squaring was a statistically invalid assumption and was
intended to do no more than show that it produced in truth an underestimate of
the real risk. I am bound to say, having
read Professor Fleming’s evidence (he was a witness before the FPP), I am far
from clear why the squaring exercise was included at all.
[38] The appellant tried without success to
contact Professor Fleming to ensure that he had correctly understood the
significance of the table. But on 19
October 1999, at 8.48 am Professor Fleming faxed to the defence solicitors and
to Mr Kelsey-Fry a letter which followed contacts from the defence solicitors
about the appellant’s supplementary statement and the extract from the CESDI
report. So far as material, it read as
follows:
‘The purpose of
including these calculations within the CESDI SUDI (Sudden Unexpected Death in
Infancy) report, was to point out that, for families with infants at high risk
(and these are particularly families living in socio-economically deprived
circumstances and those in which one or more adults smoke heavily) the risk of
a second death occurring purely by chance, without the need to adduce
deliberate or other actions by a parent, or the need to suggest the presence of
a familial or genetically determined condition, would be approximately 1 in
45,000. Thus, whilst rare, such an event
would not be of such rarity as to require the assumption of harm by a parent or
carer.
The question of second
and subsequent deaths in families without risk factors is, however, very much
more difficult to deal with and the statistics upon which these calculations
are based, whilst coming from the largest study of sudden infant death ever
conducted, must be seen as having a large confidence interval, that is to say
that, whilst the risk is approximately 1 in 8,500 for a baby to die in such a
family, the extreme rarity of such an event makes this statistic potentially
somewhat unreliable and open to the effect of other (unmeasured) parameters
which may influence the risk.
It is also important to
point out that, in a family in which a single baby died suddenly and
unexpectedly as a cot death, the risk to a subsequent baby could vary between 1
in 214 and 1 in 8500 depending upon the presence, or absence, of the various
risk factors mentioned above. If this
second event were indeed truly independent of the first, then the assessment of
the difference in probability of a second death occurring, in relation to the
presence, or absence, of one or more of the risk factors, would be determined
by the risk to that second baby ie the risk would lie somewhere between 1 in
200 and 1 in 8,500.
A further complicating
factor in assessing the risk of occurrence of sudden infant death within a
family is the potential importance of factors not included in the simplified
risk scoring system noted, but which may have a major impact upon the risk of a
baby dying, eg birth weight, gestation, post-natal growth pattern, sex of the infant,
sleeping position, heating, heavy wrapping, the presence of recent
illness. Whilst overall, none of these
factors have as big an effect on the risk of babies dying as the four factors
listed in the above risk score, for infants with none of the risk factors
included in the risk
345
score, the presence of
one, or more, of these secondary factors may have a substantial effect upon the
risk of death.
In summary, therefore,
the risk scoring system which we have developed is primarily aimed at trying to
identify families for whom the risk of a subsequent baby dying is substantially
increased compared with the general population.
Because of the extreme rarity of sudden death in families with none of
these risk factors, the use of this risk score for such families is potentially
much less reliable.’
[39] The defence thus had the necessary
ammunition to question the appellant’s use of the statistics. He gave his evidence on 20 October, but could
have been recalled if Professor Fleming’s letter had arrived too late to be
properly absorbed. But his use of the
statistics was not challenged. Further,
the appellant was aware that the defence had as one of their experts Professor
Berry who had been a joint author of the CESDI report. The material questions and answers in
cross-examination by experienced leading counsel for the defence, Mr Julian
Bevan QC, were as follows:
‘Q. On your own table when Christopher was born
his chances in relation to a cot death were, taking your own figure, 1 in
8543?
A. Around
there, yes. I say around because as this
paper mentioned, this figure analyses the three biggest risk factors and there
are other things that can modify it, but I think for practical purposes 1 in
8,500 is a starting point.
Q. He
died. When Harry came into this world,
yes?
A. Yes.
Q. When he was
born the chances of Harry dying, the chances of him dying of a cot death were
exactly the same, were they not, 1 in 8,543?
A. Yes, that
is correct.
Q. It’s a bit
like a coin, isn’t it? If you flip a
coin, heads or tails, yes?
A. Yes.
Q. It’s the
same odds each time, isn’t it, one to one?
A. Yes, and
that’s why you don’t just look at … This is why you take what’s happened to all
the children into account, and that is why you end up saying the chance of two
children dying naturally in these circumstances is very, very long odds indeed,
one in 73 million. You know, I mean…
Q. That’s a
double death every hundred years.
A. I know, but
I mean, you know, I know Mr Kelsey-Fry is interested in betting odds and you
know, it’s the chance…
Q. I don’t
know how you knew that.
A. At a
previous hearing; but it’s the chance of backing that long-odd outsider at the
Grand National, you know; let’s say it’s an 80 to 1 chance, you back the winner
last year, then the next year there’s another horse at 80 to 1 and it is still
80 to 1 and you back it again and it wins.
Now here we’re in a situation that, you know, to get to these odds of 73
million you’ve got to back that 1 in 80 chance four years running, so yes, you
might be very, very lucky because each time it’s just been a 1 in 80 chance and
you know, you’ve happened to have won it, but the chance of it happening four
years running we all know is extraordinarily unlikely. So it’s the same with these deaths. You have to say two unlikely events have
happened and together it’s very, very, very unlikely.
Q. Have you
ever heard—I hope it’s not too frivolous a remark to make but have you heard
the expression “Lies, damned lies and statistics”?
346
A. I don’t
like statistics but I’m forced into accepting their usefulness.’
The appellant accepted that the illustration he gave based
on the odds of winning the Grand National was insensitive. But it was no more than an illustration which
would bring home to the jury the risk represented by 1 in 73 million.
[40] In dismissing Sally Clark’s appeal, the
first Court of Appeal accepted that the appellant had been entitled to speak to
what was in the literature including statistics. Absent any objection—and none was made at the
trial—‘the expert can rely on an up-to-date reputable study such as the CESDI’
(see [112]). They recorded that
Professor Berry had been called by the defence and that he had said that the 1
in 8,543 statistic was an observed figure thereby, it seems, falling into the
same error as the appellant. At [144]
they said this: ‘In our judgment … Professor Meadow’s opinion was based on his
expert assessment of the medical and circumstantial evidence, not on the
statistical material.’ They rejected the
contention that he had been responsible for the ‘prosecutor’s fallacy’ (see
R v Doheny [1997] 1 Cr App R 369).
The case was never put to the jury on the basis that the chances of the
defendant being innocent were 73 million to one and the court said in terms
that they were satisfied that the appellant had not contributed to the danger
of misinterpretation of the evidence of the risk (see [155]). They said:
‘If Mr Bevan QC, for the
defence, had understood him to be saying that the odds against both of those
deaths being a SIDS death were 73 million to 1 that is a point which would
certainly have been brought out in cross-examination and not left where it was,
with the remark “Lies, damned lies and statistics”.’
At [163], the court said this: ‘Professor Meadow did not
misuse the figures in his evidence, though he did not help to explain their
limited significance.’
[41] The second appeal was allowed largely
because of the failure to disclose significant results of microbiological
tests. The statistical evidence was a
second ground. The court expressed
concern that no steps had been taken to seek to exclude the evidence. While juries might well be aware that cot
deaths are rare and that ‘two deaths in a family are much rarer still’ they
said (at [175]):
‘Putting the evidence of
1 in 73 million before the jury with its related statistics that it was the
equivalent of a single occurrence of two such deaths in the same family once in
a century was tantamount to saying that without consideration of the rest of
the evidence one could be just about sure that this was a case of murder.’
The difference of approach of the two courts is obvious,
but it does not mean that the first was acting unreasonably. The second court dealt with the evidence as
follows (at [178]):
‘The argument before us
would have addressed the question whether the 1 in 73 million figure was
misleading in itself quite apart from the use made of it at trial. On the material before us, we think it very
likely that it grossly overstates the chance of two sudden deaths within the
same family from unexplained but natural causes. There is evidence to suggest that it may
happen much more frequently than suggested by that figure although happily the
risk remains a relatively unlikely one.
The figure of 1 in 73 million was disputed by Professor Berry in his
evidence who pointed to the obvious dangers of simply multiplying the risk of
one such recurrence by the
347
same figure to obtain
the chance of two such deaths. Quite
what impact all this evidence will have had on the jury will never be known but
we rather suspect that with the graphic reference by Professor Meadow to the
chances of backing long-odds winners of the Grand National year after year it
may have had a major effect on their thinking notwithstanding the efforts of
the trial judge to play it down.’
They indicated that, if the matter had been fully argued,
they would probably have allowed the appeal on this ground too.
[42] The appellant faced lengthy heads of
charge which contained a number of statements of fact, most of which were
admitted, interspersed with allegations which could be relied on to establish
misconduct. The appellant is undoubtedly
a person who requires precision of language and was reluctant to accept any
allegation which in his view was open to misinterpretation. For example, he would not accept the accuracy
of the allegations that he held himself out as being expert in matters relating
to deaths classified as SIDS and the statistics concerning them. He did not challenge that he was ready,
willing and considered himself able to give such evidence. The distinction, while narrow, is obvious
(indeed, the allegation of holding out was deleted). He was represented by solicitor and counsel
and no doubt would have received advice on what should and should not be
admitted. It must be borne in mind that,
although bad faith was not specifically alleged, it was hovering in the
background. The lengthy and hostile
cross-examination (he gave evidence for some five days) certainly did nothing
to reassure him that a finding of bad faith would not be sought or made.
[43] The important allegations can be
summarised as follows:
‘(a) the appellant
failed to provide a fair context for the limited relevance (if any) of SIDS
deaths and the statistics were misleading and irrelevant; (b) the squaring
exercise was erroneous and failed to have regard to dependence and ignored
common environmental, genetic or biological components and their interaction;
(c) he wrongly implied that two deaths were independent; and (d) the giving of
such evidence was outwith his experience.
He failed to disclose that he was not a statistician and so was in
breach of his duties as an expert.’
[44] I do not propose to go through the
evidence in any detail. Professor Fleming
stated what the CESDI study had not been intended to do and that it had been
misunderstood by the appellant. But he
accepted that the information had been misinterpreted. He accepted too that the author was not the
best person to judge the clarity of what he had written. He said:
‘I accept that there has
now been considerable discussion and misinterpretation of a lot of the
information, largely because people are looking only at a few paragraphs in
isolation rather than the sort of multiple pages before where we describe in
technical detail the processes. But yes
clearly it is possible to misinterpret it.
It has been misinterpreted …’
[45] Professor Cox, an eminent statistician,
accepted that the squaring exercise was often done but was very often wrong in
tending to make a small probability much too small. It would be unreasonable or at least
incautious to assume that one death had no influence on the probability of a
subsequent death in the same family. He
said: ‘The information that one event has already occurred would almost
invariably increase the probability of a second event in a similar
situation.’
348
Professor Aitkin supported Sir David Cox’s views but
agreed that the mistake to assume independence was common among statistical
laymen. Finally, Professor Golding, a
paediatric epidemiologist, was called to try to demonstrate that the true risk
of a subsequent SIDS death was 1 in 75.
Her attempt failed: that allegation was not proved. But she did accept that the appellant’s
quotation of the 1 in 73 million risk was a mistake which was easily made. She observed, in answer to a question asking
for her view about someone giving expert evidence and using statistics wrongly:
‘I think it is always difficult to present information on something you are not
fully versed in. I am sure I do that
too, but in this case it had very grave consequences.’
[46] Professor Golding was cross-examined
about the studies she had relied on to establish an increased risk and some
which pointed in the other direction were put to her. It is not entirely clear whether the upshot
of all the evidence was that she believed the risk was increased in the sense
that one death tended to show that factors were in play in addition to those
which produced the figure of 1 in 8,543 so that that figure was too high and
the risk of a subsequent death, although smaller was itself to be heightened or
whether the risk of a second death was always likely to be lower than that of
the first, whatever the risk of the first may have been. As the second Court of Appeal indicated, the
general view is that the risk of a second death is lower and there is research
material which supports that view.
Certainly the experience of those such as the appellant who have worked
in the field for much of their working lives is that the risk of a second death
is indeed smaller. Furthermore, as the
appellant pointed out in his evidence, many of the studies, particularly the
earlier ones, suffered from a failure properly to define SIDS and included
reference to deaths which should not have been classified as SIDS.
[47] One of the matters he was questioned
about at length was his reference in his first statement to the 1:1,000 risk
rate. Where did this come from? It appeared in his 1999 paper in the following
paragraph:
‘The reason that more
than half the reported families included more than one dead child is likely to
be because the courts were impressed by evidence that it was highly improbable
for two or more children to die in infancy of undiagnosable natural causes: “if
there is a 1/1000 chance of a child dying suddenly and unexpectedly of
natural causes in the first year of life, the chance of two children within a
family so dying is 1/1,000,000.” A
parent who kills only one child is much more likely to be incriminated
than one who kills or abuses two or more.
Nevertheless, the finding of 26 serial killers is worrying.’
The passage in quotation marks has no attribution. In his evidence, the appellant said he could
not recall where those figures came from and he recalled writing them on a
blackboard in a lecture and reference from a member of the audience. But he said that the figure was, as he put
it, a ballpark figure. In reality, it
seems that it was based on his general experience and was used as an
average. That it was properly so
regarded became apparent from the CESDI report, which gave an average of 1 in
1,300-odd. It may well be that the
appellant did not explain things as clearly as he should have done. The hostility of the cross-examination (which
was not conducted by leading counsel for the respondent) cannot have helped.
[48] There has been no challenge to the FPP’s
findings of fact. Mr Henderson asserts
that for an expert witness to go beyond his competence and to profess to
349
be an expert on matters on which he is not an expert
amounts to misconduct. It is worse when
he volunteers the evidence rather than being led into it in
cross-examination. To do this without
disclosing that he is not an expert in the matters is misconduct. The fact that it happened in a double murder
trial made it worse. The fact that a
competent expert in the relevant area would not have given such misleading
evidence underlines the seriousness of the misconduct. It produced the prosecutor’s fallacy, which
again increased its seriousness.
[49] Mr Henderson was compelled to accept that
if the appellant had said that he was not an expert in statistics but believed
that his interpretation of the figures in the CESDI report was correct, he
might have had difficulty in seeking to uphold the finding of serious
professional misconduct. If the
appellant had been asked whether he was an expert in statistics, he would have
admitted that he was not. Mr Henderson
suggested that if he had volunteered that information, the evidence should have
been excluded. Since the defence did not
take that point, I cannot accept that that would necessarily have
happened. He also ridiculed the evidence
of the appellant that his reliance on the statistics was akin to reporting on
radiological or other expert medical data in forming his view. I do not accept that criticism.
[50] The FPP gave relatively lengthy reasons
for concluding that serious professional misconduct was proved. It criticised the appellant for failing to
meet his responsibility to use statistics ‘in accordance with good statistical
principles and practice in relation to matters within your expertise’ and
continued:
‘You owed a duty to
identify relevant matters (including assumptions) on which your statistical
evidence was based. You failed in this
duty. You should have refrained from
giving expert evidence upon matters beyond your competence, but this, again,
you failed to do.’
This ties in with the alleged failure to comply with the
fourth principle in National Justice Cia Naviera SA v Prudential Assurance
Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68, namely that an expert
should make it clear where a particular issue lies outside his expertise. Mr Henderson supported this approach by
pointing out that the appellant had in his evidence in the Crown Court
frequently refused to deal with matters based on, for example, pathological
findings which were outside his expertise.
He had not done the same in relation to the statistics.
[51] Nevertheless, the FPP acted too harshly
in concluding as it did. The appellant
gave evidence of his concerns at giving evidence and the difference between
criminal and family courts. He had honestly
and as he believed correctly relied on his understanding of the statistics. He had not concealed their source and he was
aware that the defence had access to experts.
He expected his evidence to be challenged and the adversarial process to
establish any errors. He never put
himself forward as an expert in statistics. While I accept that he can properly
be criticised for not making it clear that he was not an expert in that field,
I do not accept that his failure was as heinous as the FPP indicated.
[52] The FPP then went on to deal with the
1:1,000 and 1:1,000,000 references. It
said this:
‘The Panel has heard
expert statistical evidence (which it accepts) that the squaring of the 1:1000
ratio to conclude that there was 1 in a million incidence of double SIDS deaths
within a family was incorrect. Furthermore
you were unable to explain from where you derived these figures. You said in evidence before this Panel that
you thought someone in the audience of a
350
lecture you were giving
had said this, and that you had remembered putting the figures “on a blackboard
somewhere”, although you could not recall when and where. The Panel considered this explanation to be
unacceptable, and the members were of the opinion that this highlighted your
less than rigorous use of statistics and your inability to adhere to strict
scientific principles in so doing.’
I accept the criticism made by Ms Davies that this was
unfair and did not properly reflect his evidence. I have already referred to that part of the
evidence.
[53] In dealing with the CESDI study, the FPP
said that it produced evidence that ‘there is an elevated risk of a second SIDS
death in one family after there has been one such death’. I am far from sure that that reflects the
evidence; it may depend on what is meant by elevated risk. Elevated above what? Their criticism based on the prosecutor’s
fallacy was also unfair and might well not have been made if they had seen the
judgment of the first Court of Appeal.
The appellant did not produce the prosecutor’s fallacy. He merely gave what he believed to be
accurate evidence based on the CESDI study.
It was not for him to decide what use was made of that evidence. The FPP stated that his eminence meant that
he had a unique responsibility to take meticulous care in such a grave
case. I do not think that eminence
imposes a greater burden. The FPP said
that: ‘Your misguided belief in the truth of your arguments, maintained
throughout the period in question and indeed throughout the inquiry is both
disturbing and serious.’ That in my
judgment was hardly fair. In truth,
until he had the criticisms put to him, he made one mistake and had no reason
to believe he was wrong. His evidence at
the inquiry was given to try to show that he had honestly believed that he had
not made any mistake.
[54] Finally, the FPP decided:
‘The Panel, having
considered all those matters, has concluded that your errors, compounded by
repetition, over a considerable period of time, constitutes such a serious
departure from, and falling short of, the standards expected of a registered
medical practitioner, that it finds you guilty of serious professional
misconduct.’
I have no doubt that that conclusion is not justified by
the evidence before the FPP. As I have
said, he made one mistake, which was to misunderstand and misinterpret the
statistics. It was a mistake, as the FPP
accepted, that was easily and widely made.
It may be proper to have criticised him for not disclosing his lack of
expertise, but that does not justify a finding of serious professional misconduct.
[55] Ms Davies submits that the conclusion
that the appellant had acted in good faith and that there was no evidence of
calculated or wilful failure to use his best endeavours to provide evidence
precluded a finding of serious professional misconduct. I accept that such a finding can be made even
though there has been no bad faith or recklessness. But it will only be in a very rare case that
such a finding will be justified. The
lapses in question must be serious indeed to lead to such a finding in the
absence of bad faith. I am satisfied
that the lapses in this case did not justify the finding.
[56] It follows that I would allow the appeal
against the finding of serious professional misconduct. It is difficult to think that the giving of
honest albeit mistaken evidence could save in an exceptional case properly lead
to such a finding.
351
[57] I need say little about the
sanction. It was unnecessary since the
appellant had retired from clinical practice.
It was imposed in the teeth of the many testimonials to him and the
knowledge that he had made a real contribution to paediatric medicine. The FPP referred to the seriousness of his
‘undermining of public confidence in doctors who have this pivotal role in the
criminal justice system’. If the full
facts are taken into account and the media campaign based on a lack of
knowledge of all the circumstances is ignored that comment is unjustified. And to say, as the FPP did, that his conduct
was ‘fundamentally incompatible with what is expected by the public from a
registered medical practitioner’ approaches the irrational.
[58] I am satisfied that no more than the
imposition of a condition not to engage in medico-legal work would have been
appropriate. In truth, the finding
itself was sufficient. But, in the light
of my conclusions on the finding of serious professional misconduct, I will say
no more.
[59] The appeal is allowed on all grounds.
Appeal allowed.
Dilys
Tausz Barrister.
352
[2006] 2 All ER 353
Watkins v Secretary of State for the Home Department and
others
[2006]
UKHL 17
PRISONS: TORTS; Other: PROFESSIONS; Other
HOUSE OF LORDS
LORD
BINGHAM OF CORNHILL, LORD HOPE OF CRAIGHEAD, LORD RODGER OF EARLSFERRY, LORD
WALKER OF GESTINGTHORPE AND LORD CARSWELL
13,
14 FEBRUARY, 29 MARCH 2006
Public office – Abuse of – Misfeasance by a public
officer – Ingredients of tort – Special damage – Interference by prison
officers with prisoner’s confidential legal correspondence – Whether tort
actionable per se.
The claimant was a prisoner serving a sentence of
life imprisonment. He was engaged in
various legal proceedings. The
confidentiality of the his legal correspondence was protected by the Prison
Rules 1964 and subsequently by the Prison Rules 1999. The claimant complained that prison staff had
breached those rules by opening and reading mail when they were not entitled to
do so. He brought an action against the
Secretary of State and certain prison officers for damages for misfeasance in
public office. The judge found that
three of the officers had acted in bad faith but he dismissed the claims
against those officers on the ground that misfeasance in public office was not
a tort actionable per se, and that the claimant had failed to prove any
financial loss or physical or mental injury of any kind. The Court of Appeal allowed the claimant’s
appeal, holding that if there was a right which could be identified as a
constitutional right, then there could be a cause of action in misfeasance in
public office for infringement of that right without proof of damage. They held that the prison officers had
infringed the claimant’s constitutional right of unimpeded access to the courts
and to legal advice. A nominal award of
general damages was made, and the case was remitted to the county court for
determination of whether exemplary damages should be awarded and, if so, in
what amount. The defendants appealed.
Held – The tort of misfeasance in public
office was never actionable without proof of material damage, which included
financial loss, or physical or mental injury and psychiatric illness but not
distress, injured feelings, indignation or annoyance. The importance of the claimant’s right to
enjoyment of his right to confidential legal correspondence did not require or
justify the modification of the rule that material damage had to be proved to
establish the cause of action.
Modification would open the door to argument as to whether other rights
less obviously fundamental, basic or constitutional were sufficiently close or
analogous to be treated, for damage purposes, in the same way and in the
absence of a codified constitution the outcome of such argument in other than
clear cases would necessarily be uncertain.
The lack of a remedy in tort for someone in the position of the
claimant, who had suffered a legal wrong but no material damage, did not leave
him without a legal remedy. It could
reasonably be inferred that Parliament had intended that infringements of the
core human and constitutional rights protected by the Human Rights Act 1998
should be remedied under it and not by development of parallel remedies. Although exemplary damages could be awarded
where a compensatory award was insufficient to mark the courts
353
disapproval of proven misfeasance in public office
and deter repetition, the policy of the law was not in general to encourage the
award of exemplary damages and the law of tort should not be developed to make
it an instrument of punishment in cases where there was no material damage for
which to compensate (see [23], [25]–[28], [62], [64]–[66], [73], [76], [77],
[79], [82], below).
Decision of the Court of Appeal [2004] 4 All ER 1158
reversed.
Notes
For misfeasance in public office, see 45(2) Halsbury’s
Laws (4th edn reissue) para 502.
Cases referred to in opinions
A v Secretary of
State for the Home Dept (No 2) [2005] UKHL 71, [2006] 1 All
ER 575, [2005] 3 WLR 1249.
A-G’s Ref (No
3 of 2003) [2004] EWCA Crim 868, [2005] 4 All ER 303, [2005] QB 73, [2004]
3 WLR 451.
Ashby v White
(1703) 14 How St Tr 695, 1 ER 417, HL; rvsg (1703) 1 Sm LC (13th edn)
253, CA.
BB v UK (2004) 39
EHRR 635, [2004] ECHR 53760/00, ECt HR.
Black v North British
Railway Co 1908 SC 444, Ct of Sess.
Brasyer v Maclean
(1875) LR 6 PC 398, PC.
Campbell v UK (1992)
15 EHRR 137, [1992] ECHR 13590/88, ECt HR.
D v East Berkshire
Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS
Trust [2005] UKHL 23, [2005] 2 All ER 443, [2005] 2 AC 373, [2005] 2 WLR
993.
Davidson v Scottish
Ministers [2005] UKHL 74, (2005) Times, 19 December, 2005 SC(D) 10/12.
Davis v Bromley Corp
[1908] 1 KB 170, CA.
Davy v Spelthorne BC
[1983] 3 All ER 278, [1984] AC 262, [1983] 3 WLR 742, HL.
Dunlop v Woollahra
Municipal Council [1981] 1 All ER 1202, [1982] AC 158, [1981] 2 WLR 693,
PC.
Farrington v Thomson [1959]
VR 286, Vic SC.
Garrett v A-G
[1997] 2 NZLR 332, NZ CA.
Henly v Lyme Corp
(1828) 5 Bing 91, 130 ER 995, HL.
Hunter v Canary Wharf
Ltd, Hunter v London Docklands Development Corp [1997] 2 All ER 426, [1997]
AC 655, [1997] 2 WLR 684, HL.
Kuddus v Chief
Constable of Leicestershire Constabulary [2001] UKHL 29, [2001] 3 All ER
193, [2002] 2 AC 122, [2001] 2 WLR 1789.
Leech v Secretary of
State for Scotland 1993 SLT 365, 1992 SC 89, Ct of Sess.
Mortensen v Peters
(1906) 8 F (JC) 93, HC Just.
Nairn v University of
St Andrews [1909] AC 147, HL.
Northern Territory v
Mengel (1995) 69 ALJR 527, Aust HC.
Odhavji Estate v
Woodhouse [2003] 3 SCR 263, Can SC.
R v Deputy Governor
of Parkhurst Prison, ex p Hague [1991] 3 All ER 733, [1992] 1 AC 58, [1991]
3 WLR 340, HL.
R v Lord Chancellor,
ex p Witham [1997] 2 All ER 779, [1998] QB 575, [1998] 2 WLR 849, DC.
R v Secretary of
State for the Home Dept, ex p Leech [1993] 4 All ER 539, [1994] QB 198,
[1993] 3 WLR 1125, CA.
Pierson v
Secretary of State for the Home Dept [1997] 3 All ER 577, [1998] AC 539,
[1997] 3 WLR 492, HL.
354
R v Secretary of
State for the Home Dept, ex p Simms [1999] 3 All ER 400, [2000] 2 AC 115,
[1999] 3 WLR 328, HL.
R (on the
application of Daly) v Secretary of State for the Home Dept [2001]
UKHL 26, [2001] 3 All ER 433, [2001] 2 AC 532, [2001] 2 WLR 1622.
R (on the
application of Greenfield) v Secretary of State for the Home Dept [2005]
UKHL 14, [2005] 2 All ER 240, [2005] 1 WLR 673.
Rantzen v Mirror
Group Newspapers (1986) Ltd [1993] 4 All ER 975, [1994] QB
670, [1993] 3 WLR 953, CA.
Rawlinson v Rice
[1997] 2 NZLR 651, NZ CA.
Raymond v Honey [1982]
1 All ER 756, [1983] 1 AC 1, [1982] 2 WLR 465, HL.
Rogers v Rajendro
Dutt (1860) 13 Moo PCC 208, 15 ER 78, PC.
Roncarelli v
Duplessis [1959] SCR 121, Can SC.
Silver v UK (1983)
5 EHRR 347, [1983] ECHR 5947/72, ECt HR.
Smith New Court
Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd
[1996] 4 All ER 769, [1997] AC 254, [1996] 3 WLR 1051, HL.
Tampion v Anderson
[1973] VR 715, Vic SC.
Thoburn v Sunderland
City Council [2002] EWHC 195 (Admin), [2002] 4 All ER 156, [2003] QB 151,
[2002] 3 WLR 247.
Three Rivers DC v
Governor and Company of the Bank of England (No 3) [2000] 3 All ER
1, [2003] 2 AC 1, [2000] 2 WLR 1220, HL; rvsg in part [1999] 4 All ER
800n, [2003] 2 AC 1, [2000] 2 WLR 15, CA; affg [1996] 3 All ER 558.
Turner v Sterling
(1671) 2 Vent 25, 86 ER 287.
Wainwright v Home
Office [2003] UKHL 53, [2003] 4 All ER 969, [2004] 2 AC 406, [2003] 3 WLR
1137.
Whitelegg v Richards
(1823) 2 B & C 45, 107 ER 300.
Cases referred to in list of authorities
Akenzua (administrators
of the estate of Laws (decd)) v Secretary of State for the Home
Dept [2002] EWCA Civ 1470, [2003] 1 All ER 35, [2003] 1 WLR 741.
Alexandrou v Oxford
[1993] 4 All ER 328, CA.
Alford v A-G for
Canada (1997) 31 BCLR 228, BC CA.
Allsop v Allsop
(1860) 5 H & N 534, 157 ER 1292.
Ancell v McDermott [1993]
4 All ER 355, CA.
Ashley v Chief
Constable of Sussex Police [2005] EWHC 415 (QB), [2005] All ER (D) 336
(Mar).
Brooks v Comr of
Police for the Metropolis [2005] UKHL 24, [2005] 2 All ER 489, [2005] 1 WLR
1495.
Cable v UK (2000)
30 EHRR 1032, [1999] ECHR 24436/94, ECt HR.
Calveley v Chief
Constable of the Merseyside Police [1989] 1 All ER 1025, [1989] AC 1228,
[1989] 2 WLR 624, HL.
Calvelli v Italy
[2002] ECHR 32967/96, ECt HR.
Cassell & Co Ltd
v Broome [1972] 1 All ER 801, [1972] AC 1027, [1972] 2 WLR 645, HL.
Cowan v Chief
Constable of Avon and Somerset Constabulary [2001] EWCA Civ 1699, [2002]
HLR 830.
Craxi v Italy
(2004) 38 EHRR 47, [2003] ECHR 25337/94, ECt HR.
Cullen v Chief
Constable of the Royal Ulster Constabulary (Northern Ireland) [2003]
UKHL 39, [2004] 2 All ER 237, [2003] 1 WLR 1763.
Douglas v Hello! Ltd
(No 3) [2005] EWCA Civ 595, [2005] 4 All ER 128, [2005] 3 WLR 881.
355
Elguzouli-Daf v Comr
of Police of the Metropolis, McBrearty v Ministry of Defence [1995] 1 All
ER 833, [1995] QB 335, [1995] 2 WLR 173, CA.
Golder v UK
(1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR.
Hill v Chief
Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53, [1988] 2 WLR
1049, HL.
Hipperson v Hodge Jones
& Allen (a firm) (6 November 1998, unreported), QBD.
Johnson v Unisys Ltd
[2001] UKHL 13, [2001] 2 All ER 801, [2003] 1 AC 518, [2001] WLR 1076.
Khorasandjian v Bush
[1993] 3 All ER 669, [1993] QB 727, [1993] 3 WLR 476, CA.
Lynch v Knight
(1861) 9 HL Cas 577, 11 ER 854.
Mbasogo v Logo Ltd
[2005] EWHC 2034 (QB), [2005] All ER (D) 116 (Sep).
McKerr, Re [2004]
UKHL 12, [2004] 2 All ER 409, [2004] 1 WLR 807, HL.
McLoughlin v O’Brian [1982]
2 All ER 298, [1983] 1 AC 410, [1982] 2 WLR 982, HL.
Osman v Ferguson [1993]
4 All ER 344, CA.
Phelps v Hillingdon
London BC, Anderton v Clwyd CC, Jarvis v Hampshire CC, Re G (a minor)
[2000] 4 All ER 504, [2001] 2 AC 619, [2000] 3 WLR 776, HL.
Pickering v Liverpool
Daily Post and Echo Newspapers plc [1991] 1 All ER 622, [1991] 2 AC 370,
[1991] 2 WLR 513, HL.
Quartz Hill
Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674, [1881–5] All ER Rep
Ext 1474.
R v Lord Chancellor,
ex p Lightfoot [1999] 4 All ER 583, [2000] QB 597, [2000] 2 WLR 318, CA.
R (on the
application of KB) v Mental Health Review Tribunal, R (on the
application of B) v Mental Health Review Tribunal [2003] EWHC 193
(Admin), [2003] 2 All ER 209, [2004] QB 936, [2003] 3 WLR 185.
R v North Thames
Regional Helath Authority, ex p L [1996] 7 Med LR 385.
Racz v Home Office
[1994] 1 All ER 97, [1994] 2 AC 45, [1994] 2 WLR 23, HL.
Rookes v Barnard [1964]
1 All ER 367, [1964] AC 1129, [1964] 2 WLR 269, HL.
Stovin v Wise [1996]
3 All ER 801, [1996] AC 923, [1996] 3 WLR 388, HL.
Wilkinson v Downton [1897]
2 QB 57, [1895–9] All ER Rep 267.
Wong v Parkside
Health NHS Trust [2001] EWCA Civ 1721, [2003] 3 All ER 932, CA.
X (minors)
v Bedfordshire CC, M (a minor) v Newham London BC, E (a
minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3
WLR 152, HL.
Appeal
The Secretary of State for the Home Department appealed
with permission of the Court of Appeal (Brooke, Clarke and Laws LJJ) from its
decision on 20 July 2004 ([2004] EWCA Civ, [2004] 4 All ER 1158) allowing the
appeal of Jeffrey Shane Watkins from the order of Judge Ibbotson in the Leeds
County Court on 15 July 2003 dismissing his claim for damages for misfeasance
in public office brought in relation to the actions of Prison Officers Mark
Ravenscroft, Colin Rosevere, Paul Robinson and eleven other prison officers. The facts are set out in the opinion of Lord
Bingham of Cornhill.
Philip Sales and
Wendy Outhwaite (instructed by the Treasury Solicitor) for the
Secretary of State.
Rabinder Singh QC
and Florence Krause (instructed by AS Law) for the respondent.
356
Their Lordships took time for consideration.
29 March 2006.
The following opinions were delivered.
LORD BINGHAM OF CORNHILL.
[1] My Lords, is the tort of misfeasance in
public office actionable without proof of financial loss or physical or mental
injury and, if so, in what circumstances?
Those are the questions which the House must resolve in this appeal by
the Home Office, which is the first defendant in these proceedings. There were originally fourteen other
defendants in the action, but none is party to this appeal.
[2] Mr Watkins was at all material times a
convicted prisoner serving a sentence of life imprisonment, first in Wakefield
and then in Frankland Prison. He was
engaged in a number of legal proceedings, actual and contemplated. This gave rise to correspondence with legal
advisers, courts and other bodies.
[3] During the relevant period (1 May 1998 to
5 December 2000) the confidentiality of the respondent’s legal correspondence
was protected, at first by r 37A of the Prison Rules 1964, SI 1964/388 which
became (without textual alteration) r 39 of the Prison Rules 1999, SI
1999/728. This rule included the
following provisions:
‘39. Correspondence
with legal advisers and courts.—(1) A prisoner may correspond with his
legal adviser and any court and such correspondence may only be opened, read or
stopped by the governor in accordance with the provisions of this rule.
(2) Correspondence to
which this rule applies may be opened if the governor has reasonable cause to
believe that it contains an illicit enclosure and any such enclosures shall be
dealt with in accordance with the other provision of these Rules.
(3) Correspondence to
which this rule applies may be opened, read and stopped if the governor has
reasonable cause to believe its contents endanger prison security or the safety
of others or are otherwise of a criminal nature.
(4) A prisoner shall be
given the opportunity to be present when any correspondence to which this rule
applies is opened and shall be informed if it or any enclosure is to be read or
stopped.
(5) A prisoner shall on
request be provided with any writing materials necessary for the purposes of
paragraph (1).
(6) In this rule,
“court” includes the European Commission of Human Rights, the European Court of
Human Rights and the European Court of Justice; and “illicit enclosure”
includes any article possession of which has not been authorised in accordance
with the other provisions of these Rules and any correspondence to or from a
person other than the prisoner concerned, his legal adviser or a court.’
A Home Office instruction (113/1995, 21 December 1995) to
prison governors required them to protect such correspondence against
inadvertent or deliberate opening by, in particular, the training of staff
handling prisoners’ mail. A Standing
Order provided for envelopes containing legal correspondence to be marked as
such.
[4] The respondent complained that staff at
both prisons had breached the Prison Rules by opening and reading mail when
they were not entitled to do so. He issued
these proceedings against the Home Office and fourteen named prison
357
officers claiming damages for misfeasance in public
office. Judge Ibbotson, sitting in the
Wakefield County Court, found that a number of officers had wrongly interfered
with the respondent’s correspondence.
But he found that most of them had done so without bad faith, held by
the House in Three Rivers DC v Governor and Company of the Bank of England (No
3) [2000] 3 All ER 1, [2003] 2 AC 1 to be an essential ingredient of the tort,
and so the claim against those officers failed.
[5] In the case of three officers, however,
the judge found bad faith to be established.
One, Mr Ravenscroft at Wakefield, removed and inspected the contents of
letters marked as legal correspondence, dismissing the respondent’s protest
with contempt, indifferent whether he was acting lawfully or not. A second officer, Mr Rosevere, also at
Wakefield, denied (in bad faith) that the rule applied to incoming mail. A third officer, Mr Robinson, at Frankland,
opened two letters addressed to the respondent marked ‘Durham County Court’ to
see if they related to an action which the respondent had brought against him
in that court. Thus in these three
instances the bad faith ingredient was established. But the judge dismissed the respondent’s
claims against these officers also, on the ground that misfeasance in public
office was not a tort actionable per se, and the respondent had failed to prove
any financial loss or physical or mental injury of any kind. Indeed the judge formed the impression that
‘in many ways [the respondent] appears to thrive on these conflicts’.
[6] The respondent appealed against the
dismissal of his claims against the three officers, contending that the tort of
misfeasance in public office was a tort actionable per se, and so capable of
being established without proof of damage, or alternatively capable of being
established by proof of anxiety and distress falling short of physical or
mental injury. The Court of Appeal
(Brooke, Clarke and Laws LJJ) unanimously allowed the respondent’s appeal
([2004] EWCA Civ 966, [2004] 4 All ER 1158, [2005] QB 883), but on somewhat
different grounds of their own devising.
They held that if there is a right which may be identified as a
constitutional right, then there may be a cause of action in misfeasance in
public office for infringement of that right without proof of damage. There had here been interference by the three
officers with the respondent’s constitutional right to have unimpeded access to
the courts and to legal advice.
Therefore the respondent was entitled to nominal damages of £5 against
each of the three officers, and the claims should be remitted to the county
court for consideration whether exemplary damages should be awarded against the
three officers and, if so, assessment of the sums to be awarded. The Court of Appeal gave the appellant leave
to appeal to the House on condition that it paid the respondent’s costs in the
House irrespective of the outcome.
COMMON GROUND
[7] It was common ground that the issue now
before the House had not been an issue for decision by the House in Three
Rivers (No 3), since it was clear in that case that the Bank of
England’s conduct, if tortious at all, was alleged to be causative of financial
loss. Thus while no criticism was
directed to the definition of the tort given by the House in Three Rivers (No
3), it did not resolve the present appeal.
There was no challenge to the judge’s findings of bad faith against the
three officers, nor to his finding that their conduct had caused the respondent
no financial loss or physical or mental injury, which in argument was helpfully
described as ‘material damage’, an expression understood to include recognised
psychiatric illness but not distress, injured feelings, indignation or
annoyance.
358
The respondent wished to be free in any later hearing
to contend that he had suffered emotions of the latter kind. It was common ground, in the light of the
decision of the House in Kuddus v Chief Constable of Leicestershire
Constabulary [2001] UKHL 29, [2001] 3 All ER 193, [2002] 2 AC 122, that
exemplary damages could in principle be awarded where misfeasance in public
office was established. But the
appellant challenged the proposition, accepted by the Court of Appeal and
supported by the respondent, that exemplary damages could be awarded even where
no material damage was shown because, as it contended, proof of such damage was
a necessary condition of establishing the tort.
POLICY CONSIDERATIONS
[8] There is great force in the respondent’s
submission that if a public officer knowingly and deliberately acts in breach
of his lawful duty he should be amenable to civil action at the suit of anyone
who suffers at his hands. There is an
obvious public interest in bringing public servants guilty of outrageous
conduct to book. Those who act in such a
way should not be free to do so with impunity.
[9] On the other hand, it is correctly said
that the primary role of the law of tort is to provide monetary compensation
for those who have suffered material damage rather than to vindicate the rights
of those who have not. If public
officers behave with outrageous disregard for their legal duties, but without
causing material damage, there are other and more appropriate ways of bringing
them to book. It is said to be
unnecessary and untimely to develop this tort beyond the bounds hitherto
recognised. I touch further on some of
these considerations below.
[10] I am attracted by each of these competing
policy approaches. But I note that in
October 2004 the Law Commission published a Discussion Paper on Monetary
Remedies in Public Law in which various important themes bearing on the
interrelation of public law and private law remedies and the impact of the
Human Rights Act 1998 were canvassed. At
a seminar held in November 2004 it was suggested (as recorded on the Law
Commission website) that focus on monetary remedies was often too narrow, that
money was often not what the wronged citizen wanted, that other forms of
redress might be more appropriate and that new liabilities for public bodies to
pay compensation were unlikely to find favour.
The continuing work of the Law Commission in this area strengthens the
opinion to which I would anyway have inclined, that the House should endeavour
to establish whether or not, in this and other jurisdictions where the tort has
been recognised, it has or has not been understood as actionable per se, and
that the House should apply the law as thus understood.
MISFEASANCE IN PUBLIC OFFICE
[11] In Davis v Bromley Corp [1908] 1
KB 170 the Court of Appeal held, in effect, that a cause of action for
misfeasance in public office did not exist.
It is unsurprising that English lawyers lost sight of this tort, and
reference (for example) to the fourteenth edition of Clerk & Lindsell on
Torts (1975) reveals no mention of it.
But in Dunlop v Woollahra Municipal Council [1981] 1 All ER 1202
at 1210, [1982] AC 158 at 172 the Privy Council described this tort as
‘well-established’, and a little research shows this description to be correct.
[12] In Three Rivers (No 3)
[2000] 3 All ER 1 at 6–7, [2003] 2 AC 1 at 189–190, Lord Steyn traced the cause
of action back to Turner v Sterling (1671) 2 Vent 25, 86 ER 287. In that case the plaintiff complained that
his election as one of two
359
custodians of London Bridge, a remunerated office,
was thwarted by the malicious and unlawful action of the Lord Mayor. It was an action upon the case. There was a question whether the action would
lie. Wylde J held ((1671) 2 Vent 25 at
26, 86 ER 287 at 288) that it would: ‘Where an officer does any thing against
the duty of his place and office, and a damage thereby accrues to the party, an
action lies …’ Archer J agreed ((1671) 2
Vent 25 at 26, 86 ER 287 at 288): ‘for the particular damage an action
lies.’ Tyrrel J ((1671) 2 Vent 25 at 27,
86 ER 287 at 288) also agreed: ‘this action is for damages for being prevented
of having the office.’ He addressed the
arguments that ‘every action upon the case supposes damnum & injuriam’, and
that since there had been no election it could not be known whether the
plaintiff would have been elected, by pointing out that it would be determined
whether he would have been elected and ‘an action of the case lies for a
possibility of damage’ (see (1671) 2 Vent 25 at 27, 86 ER 287 at 289). Vaughan CJ dissented, on the ground that no
damage appeared. Thus all the judges
held damage to be an essential ingredient of the cause of action, as would
normally (not always) be so of an action on the case; they differed only on
whether damage was or could on the facts be sufficiently shown.
[13] The Court of Appeal placed great reliance
on Ashby v White (1703) 1 Sm LC (13th edn) 253. The plaintiff in that case was a burgess of
the borough of Aylesbury who complained that the wrongful conduct of the
returning officer had denied him his entitlement to vote. In the Court of King’s Bench a majority of
the judges rejected his claim on a number of grounds, among them that he had
suffered no damage and the matter was one for Parliament, not the courts. But Holt CJ dissented. He described (at 270) the plaintiff’s right
as ‘a personal right’ but also (at 276) as ‘a matter of property’ and regarded
the plaintiff as entitled to the benefit of a franchise vested in the
corporation (see 271). The respondent
relies in particular on Holt CJ’s acceptance (at 273) of the right to vote as
‘a thing of the highest importance’ and on his ruling:
‘If the plaintiff has a
right, he must of necessity have a means to vindicate and maintain it, and a
remedy if he is injured in the exercise or enjoyment of it; and indeed it is a
vain thing to imagine a right without a remedy; for want of right and want of
remedy are reciprocal.’
[14] It is not entirely easy to evaluate this
authority, since Holt CJ revised his judgment before the case went to the House
of Lords (see 283), where his dissent was upheld by a large majority of lay
peers (see 278), on grounds which he is said to have drafted. Professor Sir John Baker QC, in An Introduction
to English Legal History (4th edn, 2002) pp 431–432, interprets the claim
as one for the disturbance of miscellaneous rights which would otherwise go
unprotected and observes that the pleadings ‘show an affinity to more
conventional nuisance and disturbance actions’, although the right to vote was
not strictly a property right. The late
Professor Fleming (The Law of Torts (9th edn, 1998) p 22) describes the
claim as one in quasi-trespass, for direct infringement of an incorporeal
property right, having all the attributes of trespass. The analogy with trespass may perhaps explain
why material damage was not held to be a necessary ingredient of the tort,
since trespass is of course the paradigm case of a tort actionable per se.
[15] Whitelegg v Richards (1823) 2 B
& C 45, 107 ER 300 concerned a debtor, imprisoned to coerce him to pay his
debt to the plaintiff, whom the defendant, a court clerk, ordered to be
released, ‘wrongfully and maliciously intending to injure the plaintiff’. Abbott CJ recorded ((1823) 2 B & C 45 at
52, 107 ER 300 at 302):
360
‘On the argument before
us, some authorities were quoted to shew, that an action upon the case may be
maintained against an officer of a Court for a falsity or misconduct in his
office, whereby a party sustains a special damage; and that, in this case, a
damage was plainly shewn by the loss of the means of enforcing payment from the
debtor, as in actions against sheriffs or gaolers for an escape.
It is not necessary to
repeat the authorities quoted. The general
principle was not controverted.’
It seems clear that damage was regarded as the gist of the
action. In Henly v Lyme Corp
(1828) 5 Bing 91, 130 ER 995 the plaintiff owned property close to the sea
which had been swamped by the tide because the corporation, who had been
granted land by the Crown subject to a condition that it maintain the
sea-defences, had ‘wrongfully and unjustly intending to injure, prejudice, and
aggrieve the plaintiff’ permitted these defences to become ‘ruinous, prostrate,
fallen down, washed down, out of repair, and in great decay’ for want of
necessary maintenance. In his judgment,
Best CJ said ((1828) 5 Bing 91 at 107, 130 ER 995 at 1001):
‘Now I take it to be
perfectly clear, that if a public officer abuses his office, either by an act
of omission or commission, and the consequence of that, is an injury to an
individual, an action may be maintained against such public officer. The instances of this are so numerous, that
it would be a waste of time to refer to them.’
Best CJ went on to give a series of examples all of which
plainly involved material damage. One of
these examples related to a man to whom a clergyman refused to administer the
sacrament, who was described as ‘thereby prejudiced in his civil rights’
because, under the Corporation Act 1661 and the Test Act 1673, receiving the
sacrament within a specified period was a condition of eligibility for
membership of a town corporation and of holding civil and military
offices. The case was one in which the
corporation had neglected its duty and the plaintiff was clearly entitled to be
compensated for the financial loss he had suffered (see (1828) 5 Bing 91 at
108, 130 ER 995 at 1001).
[16] In Rogers v Rajendro Dutt (1860)
13 Moo PCC 208, 15 ER 78 the plaintiff’s claim finally failed because, as the
Privy Council held, the conduct complained of had not been wrongful. But the exposition of Dr Lushington, giving
the judgment of the Board, was clear. He
said ((1860) 13 Moo PCC 208 at 236, 15 ER 78 at 88–89):
‘For if the act which he
[the defendant] did was in itself wrongful, as against the Plaintiffs, and
produced damage to them, they must have the same remedy by action against the
doer, whether the act was his own, spontaneous and unauthorized, or whether it
were done by the order of the superior power.’
The plaintiff had, at trial, proved damages of Re 6,624.
[17] Brasyer v Maclean (1875) LR 6 PC
398 was an appeal to the Privy Council from New South Wales. It arose from a false return made by a
sheriff which led to the arrest of the plaintiff and his attachment for 24
hours. The Board differed from the
Supreme Court, which had nonsuited the plaintiff because no malice had been
shown. But the Board regarded it (at
404) as ‘impossible to say that no damage was sustained by the Plaintiff in
consequence of that arrest’, held (at 406)
361
that the sheriff was guilty of a misfeasance and held
that the damage resulting from the misfeasance was ‘sufficient damage to enable
the Plaintiff to maintain an action against the sheriff for that misfeasance’.
[18] In Farrington v Thomson [1959] VR
286 at 293, Smith J, sitting in the Supreme Court of Victoria, ruled:
‘Proof of damage is, of
course, necessary in addition. In my
view, therefore, the rule should be taken to go this far at least, that if a
public officer does an act which, to his knowledge, amounts to an abuse of his
office, and he thereby causes damage to another person, then an action in tort
for misfeasance in a public office will lie against him at the suit of that person.’
This decision was cited with approval, and the need for
damage was affirmed, by the Full Court of Victoria in Tampion v Anderson
[1973] VR 715 at 720. The High Court of
Australia had occasion to consider the ingredients of this tort in Northern
Territory v Mengel (1995) 69 ALJR 527, and plainly considered the suffering
of damage by the plaintiff to be one of them (at 540, 546, 554).
[19] The plaintiff in Garrett v A-G
[1997] 2 NZLR 332 claimed damages for financial loss and damage to her
reputation caused by the alleged failure of the police to investigate her
complaint that she had been raped by a police constable in a police
station. By the time the case reached
the New Zealand Court of Appeal Clarke J had already given his first instance
judgment in Three Rivers DC v Governor and Company of the Bank of England (No
3) [1996] 3 All ER 558 to which I refer at [21], below, and the court
relied on his analysis. Giving the
judgment of the court ([1997] 2 NZLR 332 at 349), Blanchard J expressed
agreement with Clarke J—
‘that it is insufficient
to show foreseeability of damage caused by a knowing breach of duty by a public
officer. The plaintiff, in our view,
must prove that the official had an actual appreciation of the consequences for
the plaintiff, or people in the general position of the plaintiff, of the
disregard of duty, or that the official was recklessly indifferent to the
consequences and can thus be taken to have been content for them to happen as
they would.’
He went on to observe (at 351) that the common law had
long set its face against any general principle that invalid administrative
action by itself gives rise to a cause of action in damages by those who have
suffered loss as a consequence of that action.
A differently constituted Court of Appeal followed this decision in
Rawlinson v Rice [1997] 2 NZLR 651.
In neither case did the decision turn on whether the plaintiff had
suffered material damage. But it can
scarcely be thought that the court regarded appreciation of the likelihood of
damage as a necessary ingredient of the cause of action but did not so regard
its occurrence.
[20] The Supreme Court of Canada reviewed the
ingredients of misfeasance in public office in Odhavji Estate v Woodhouse
[2003] 3 SCR 263. Iacobucci J gave the judgment
of a unanimous court and held (at para 32):
‘To summarize, I am of
the opinion that the tort of misfeasance in a public office is an intentional
tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct
in the exercise of public functions; and (ii) awareness that the conduct is
unlawful and likely to injure the plaintiff.
Alongside deliberate unlawful conduct and the requisite knowledge, a
plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove
that the tortious conduct was the legal
362
cause of his or her
injuries, and that the injuries suffered are compensable in tort law.’
The court went on to hold (at para 41) that while grief or
emotional distress were insufficient injury to support a claim, visible and
provable illness or recognisable physical or psychopathological harm were not.
[21] I come finally to Three Rivers (No
3). There was, as already
observed, no debate in that case whether, if the other ingredients of
misfeasance in public office were established, the plaintiffs had suffered
loss. In his judgment at first instance,
Clarke J nonetheless reviewed the ingredients of the tort in a comprehensive
manner, summarising his conclusions ([1996] 3 All ER 558 at 632–633). His final conclusion was:
‘(6) Where a plaintiff
establishes (i) that the defendant intended to injure the plaintiff or a person
in a class of which the plaintiff is a member (limb one) or that the defendant
knew that he had no power to do what he did and that the plaintiff or a person
in a class of which the plaintiff is a member would probably suffer loss or
damage (limb two) and (ii) that the plaintiff has suffered loss as a result,
the plaintiff has a sufficient right or interest to maintain an action for
misfeasance in public office at common law.
The plaintiff must of course also show that the defendant was a public
officer or entity and that his loss was caused by the wrongful act.’
I do not understand the Court of Appeal to have taken a
different view on this question (see [2003] 2 AC 1 at 57–59, 157–166). Both Hirst and Robert Walker LJJ in their
joint opinion and Auld LJ in his dissent considered with care the causation of
the plaintiffs’ loss (at 59–61, 166–169).
[22] In the House of Lords, Lord Steyn ([2000]
3 All ER 1 at 8, [2003] 2 AC 1 at 191) defined the two different forms of
liability for misfeasance in public office.
The first is targeted malice by a public officer, conduct specifically
intended to injure a person or persons.
The second is where a public officer acts, knowing that he has no power
to do the act complained of and that the act will probably injure the
plaintiff. In Lord Millett’s opinion
([2000] 3 All ER 1 at 49, [2003] 2 AC 1 at 235) these are merely different ways
in which the necessary element of intention is established. The state of mind to be proved against the
defendant differs somewhat in the two cases.
Common to both forms, however, is the requirement of proving that the
misfeasance in question has caused damage and that the public officer was at
least reckless whether such damage would be caused or not (see [2000] 3 All ER
1 at 10–12, 36, 39–41, 45, 50, [2003] 2 AC 1 at 194–196, 221–222, 225–227, 231,
236–237).
[23] These authorities present a remarkably
consistent body of law on the point now at issue. The proving of special damage has either been
expressly recognised as an essential ingredient, or it has been assumed. None of these cases (and no authority,
judicial or academic, cited to the House) lends support to the proposition that
the tort of misfeasance in public office is actionable per se. Ashby v White (1703) 1 Sm LC (13th
edn) 253, as I have suggested, is not reliable authority for that
proposition. I would be very reluctant
to disturb a rule which has been understood to represent the law for over 300
years, and which has been adopted elsewhere, unless there were compelling
grounds for doing so.
[24] The feature on which the Court of Appeal
fastened was the breach in this case of the respondent’s constitutional right
to protection of the confidentiality of his legal correspondence. That was seen as providing an analogy with
the breach
363
of the plaintiff’s constitutional right to vote in
Ashby v White. The respondent relied
on the authority of the Court of Appeal (per Steyn LJ) that the right of access
to a court, closely linked with the right to obtain confidential legal advice,
is a constitutional right (see R v Secretary of State for the Home Dept, ex
p Leech [1993] 4 All ER 539 at 548, [1994] QB 198 at 210). In a number of cases rights of this kind have
been described as ‘constitutional’, ‘basic’ or ‘fundamental’ (see, for
instance, Pierson v Secretary of State for the Home Dept [1997] 3
All ER 577 at 592, [1998] AC 539 at 575; R v Secretary of State for the Home
Dept, ex p Simms [1999] 3 All ER 400 at 412, [2000] 2 AC 115 at 130–131; R
(on the application of Daly) v Secretary of State for the Home
Dept [2001] UKHL 26 at [12], [2001] 3 All ER 433 at [12], [2001] 2 AC 532; R
v Lord Chancellor, ex p Witham [1997] 2 All ER 779 at 783–784, 787, 788,
[1998] QB 575 at 581, 585, 586). In all
these cases the importance of the right was directly relevant to the lawfulness
of what had been done to interfere with its enjoyment.
[25] In the present context the unlawfulness
of what was done to interfere with the respondent’s enjoyment of his right to
confidential legal correspondence is clear.
I see scant warrant for importing this jurisprudence into the definition
of the tort of misfeasance in public office.
We would now, of course, regard the right to vote as basic, fundamental
or constitutional. None of these
expressions was used by Holt CJ in Ashby v White, and scarcely could
have been given the very small number of adult citizens by whom the right was
enjoyed at the time. There is thus an
element of anachronism in relying on Ashby v White (itself a highly
politicised decision) to support a proposition it would scarcely (despite the
right to vote being ‘a thing of the highest importance, and so great a
privilege’) have been thought to support at the time. It is, I think, entirely novel to treat the
character of the right invaded as determinative, in the present context, of
whether material damage need be proved.
[26] Novelty is not in itself a fatal
objection, and the respondent contends that the importance of the right in
question requires or justifies the modification of a rule, if there be such,
that material damage must be proved to establish a cause of action. I do not, however, think that the House
should take or indorse this novel step, for a number of reasons. The first is that it would open the door to
argument whether other rights less obviously fundamental, basic or
constitutional than the right to vote and the right to preserve the
confidentiality of legal correspondence, were sufficiently close to or
analogous with those rights to be treated, for damage purposes, in the same
way. Since, in the absence of a codified
constitution, these terms are incapable of precise definition, the outcome of
such argument in other than clear cases would necessarily be uncertain. My second reason, already touched on, is the
undesirability of introducing by judicial decision, without consultation, a
solution which the consultation and research conducted by the Law Commission
may show to be an unsatisfactory solution to what is in truth a small part of a
wider problem. Thirdly, the lack of a
remedy in tort for someone in the position of the respondent, who has suffered
a legal wrong but no material damage, does not leave him without a legal
remedy. Prison officers who breach the
rules (even in the absence of bad faith), and the governors of both prisons,
would be amenable to judicial review.
Errant officers would be susceptible to disciplinary sanctions, and
failure to initiate such proceedings could also, on appropriate evidence, be
challenged by judicial review. The
officers might well be indictable for the common law offence of misconduct in
public office (see A-G’s Ref (No 3 of 2003) [2004] EWCA Crim 868,
[2005] 4 All ER 303, [2005] QB 73).
Breach of a fundamental human or constitutional right would also, in all
probability, found a claim under s 7 of the
364
Human Rights Act 1998, as it would in this case where
the violation occurred after the 1998 Act came into force. I have myself questioned, albeit in a lone
dissent, whether development of the law of tort should be stunted, leaving very
important problems to be swept up by the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998
Act) (see D v East Berkshire Community Health NHS Trust, K v Dewsbury
Healthcare NHS Trust, K v Oldham NHS Trust [2005] UKHL 23 at [50], [2005] 2
All ER 443 at [50], [2005] 2 AC 373), but the observation was made in a case
where, in my opinion, the application of familiar principles supported
recognition of a remedy in tort, not a case like the present where the
application of settled principle points strongly against one. A fourth reason for not adopting the rule for
which the respondent contends is to be found in enactment of the 1998 Act: it
may reasonably be inferred that Parliament intended infringements of the core
human (and constitutional) rights protected by the Act to be remedied under it
and not by development of parallel remedies.
It is true, as the respondent pointed out, that s 11 of the 1998 Act
contains a safeguard for existing rights, and monetary compensation awarded at
Strasbourg tends, in comparison with domestic levels of award, to be
ungenerous. But there is, as I have
concluded, no existing right to damages where misfeasance in public office has
caused no material damage to the victim, and if the evidence showed an
egregious and deliberate abuse of power by a public officer one would expect
the Strasbourg court to award compensation for non-pecuniary loss even though
its practice is not to award exemplary damages (see BB v United Kingdom
(2004) 39 EHRR 635 at 643 (para 36)). It
is, however, a fifth reason for resisting the respondent’s argument that what
he seeks, for himself and others in a like position in similar actions, is not
an award of damages to compensate the claimant but an award to punish the
defendant. Such, after all, is the
function of exemplary damages. That exemplary
damages may be awarded where a compensatory award is insufficient to mark the
court’s disapproval of proven misfeasance in public office, and deter
repetition, is, as already noted, accepted.
But the policy of the law is not in general to encourage the award of
exemplary damages, and I would not for my part develop the law of tort to make
it an instrument of punishment in cases where there is no material damage for
which to compensate.
[27] For these reasons, and those given by my
noble and learned friends Lord Hope of Craighead, Lord Rodger of Earlsferry and
Lord Carswell, I would accordingly rule that the tort of misfeasance in public
office is never actionable without proof of material damage as I have defined
it. I would accordingly allow the
appeal, set aside the Court of Appeal’s order save as to costs and restore the
order of the judge. The appellant must,
conformably with the condition imposed below, pay the respondent’s costs of
this appeal to the House.
LORD HOPE OF CRAIGHEAD.
[28] My Lords, I have had the advantage of
reading in draft the speeches of my noble and learned friends Lord Bingham of
Cornhill, Lord Rodger of Earlsferry and Lord Carswell. I agree with them, and I too would allow the
appeal and make the order which Lord Bingham proposes.
[29] I would add just a few words to the
references that have been made by Lord Rodger and Lord Carswell to the way
equivalent proceedings would be treated in Scotland. Although the point is by no means
determinative of the issue in this appeal, it is nevertheless of some
interest. It is the normal practice for
rules regulating the conduct of public officers in Scotland to be the same, or
at least
365
substantially the same, as those by which the conduct
of comparable public officers in England and Wales are regulated. Prison Rules are no exception. The Prisons and Young Offenders Institutions
(Scotland) Rules, SI 1994/1931 contain rules protecting the confidentiality of
a prisoner’s correspondence with his legal adviser which are closely modelled
on the Prison Rules 1964, SI 1964/388, as amended by the Prison Rules
(Amendment) (No 2) Rules. It would be a
matter for regret if the remedies for a breach of these and other rules
regulating the conduct of public officers were not the same on either side of
the border.
[30] The question whether a breach of duty is
actionable without proof of material damage has long been settled in
Scotland. In Black v North British
Railway Co 1908 SC 444, the widow and children of man who had been killed
while travelling as a passenger on one of their trains claimed damages against
the railway company. A court of seven
judges was asked to lay down the principles on which on which damages should be
assessed under the head of solatium. For
the pursuers it was contended that they should be found entitled to enhanced
damages if they were able to show that the accident was caused by gross
negligence. This argument was
rejected. Lord President Dunedin said
(at 453–454) that he found no authority for any distinction between damages and
exemplary damages in the law of Scotland.
[31] Lord President Dunedin might have added
that an award of exemplary damages was also contrary to principle. The function of the law of delict in Scotland
is to ensure that if loss is caused by another person’s wrongful act the loss
will be compensated. The wrongful act of
a public officer gives rise to an obligation in delict. The obligation arising from his wrongful act
is to make reparation for loss, injury or damage suffered. Reparation is achieved either by restoring to
the other party what he has lost or, where that cannot be done, by giving the
like value, or that which is nearest, to make up the damage (see Stair, Institutions
of the Law of Scotland (1693) 1, 9, 4).
The loss suffered is the basis for the assessment of damages. It is not the function of the law of delict
to exact anything more, and certainly not anything by way of punishment. If no loss has been suffered, the wrongful
act will not give rise to any liability.
[32] The present state of the authorities in
England and Wales, as Lord Bingham has so clearly demonstrated, is that the
tort of misfeasance in public office is actionable only where the claimant has
suffered loss or damage which was caused by the tortuous conduct of the public
officer. Its function is to compensate
the claimant, not to punish the public officer.
Section 8(4) of the Human Rights Act 1998 provides that in determining the
amount of an award of damages for a breach a convention right the court must
take into account the principles which the Strasbourg Court applies under art
41 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969). Those principles do not extend to awarding
exemplary damages. This is as good an
indication as any as to what the policy of the law should now be. I agree that we should refrain from
developing the tort so that exemplary damages may be exacted in cases where a
compensatory award cannot be made because the claimant has not suffered any
material damage as a result of the tortious act of the public officer.
LORD RODGER OF EARLSFERRY.
[33] My Lords, although convicted of crimes
and deprived of their liberty, prisoners have the right to send and receive
letters and to make and receive telephone calls. Many of the communications to relatives and
friends are social
366
or deal with purely personal matters, but prisoners
may also wish to contact the courts or their legal advisers in relation to
legal problems, real or perceived.
Whatever the nature of the communications, there is a risk that some
prisoners may abuse the system to breach the security of their prison. The prison authorities can therefore take
measures to counteract that risk by opening, reading and, if necessary,
censoring or blocking correspondence.
The Secretary of State’s authority for taking these measures is to be
found in the Prison Rules made under s 47(1) of the Prison Act 1952. Obviously, the rights of prisoners to
communicate with the courts and to consult their legal advisers in confidence
are particularly important. Devising a
system which respects those rights while maintaining the security of the
prisons has not proved altogether easy, as can be seen from the cases that have
come before the courts over the last 25 years.
[34] In Raymond v Honey [1982] 1 All ER
756, [1983] 1 AC 1, in the purported exercise of his powers under the Prison
Rules, a prison governor intercepted a letter containing documents which a prisoner
had addressed to the Crown Office for the purpose of raising proceedings to
have the governor committed for an alleged contempt of court. This House decided that the governor was in
contempt of court in stopping the documents.
Lord Wilberforce held that there was nothing in the Prison Act 1952
which conferred power to make regulations which would deny, or interfere with,
the right of a prisoner to have unimpeded access to a court. The rule-making provision in s 42(1) was, he
said, ‘quite insufficient to authorise hindrance or interference with so basic
a right’. That basic right was also
given effect in the context of arts 6 and 8 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1
to the Human Rights Act 1998). Long
before the 1998 Act, the scope of a prisoner’s right to correspond with his
lawyer and the permissible restrictions on that right were progressively
clarified by the European Court in cases involving the United Kingdom (see
Silver v UK (1983) 5 EHRR 347 and Campbell v UK (1992) 15 EHRR
137). At about the same time Mr Mark
Leech was active in getting the courts to clarify the position in both Scotland
(Leech v Secretary of State for Scotland 1993 SLT 365, 1992 SC 89) and
England (R v Secretary of State for the Home Dept, ex p Leech [1993] 4
All ER 539, [1994] QB 198).
[35] Most of the cases went in favour of the
prisoners. The Home Office and the
Scottish Office responded by amending the rules to meet the various decisions of
the courts. This appeal concerns r 37A
of the Prison Rules 1968, SI 196/388, as amended to take account of the
decision of the Court of Appeal in Ex p Leech, and r 39 of the Prison
Rules 1999, SI 1999/728, which is in identical terms. Taken as a whole, the cases revolutionised
the way that prisoners’ correspondence with solicitors and courts had to be
handled. The changes in r 37A reflected
this, but the message seems to have taken some time to filter down to the
frontline prison officers. In a careful
judgment in these proceedings brought by the respondent, Mr Watkins, Judge
Ibbetson found that there had been many breaches of the rules for handling his
correspondence with solicitors. But, for
the most part, the judge concluded that the breaches had occurred because the
officers concerned simply did not understand the system which they were
supposed to be operating. The position
was different in the three cases which form the subject matter of the Home
Secretary’s appeal.
[36] Mr Watkins was a prisoner in Wakefield
Prison in 1998. In September one of the
prisoner officers, a Mr Ravenscroft, opened two letters to him from his
solicitors, even though the officer had no good reason to do so in terms of r
37A. He did not care whether he was
breaking the rule or not. When the
respondent
367
protested, Mr Ravenscroft replied, ‘So report me to
John Major’a. A notice was then issued to staff, reminding
them about the terms of r 37A. About two
weeks later, the respondent received another letter from a solicitor. The officer on duty refused to hand the
letter over to him unless he was willing to open it in his presence. Later that day, another prison officer, Mr
Rosevere, ripped open the letter and, when challenged, said that the notice
only applied to outgoing mail. In fact,
Mr Rosevere either knew that he was acting unlawfully or was reckless whether
his conduct was unlawful.
________________________________________
a Editor’s note: Prime Minister 1990–1997
________________________________________
[37] By December 2000 r 39 had replaced r 37A
and Mr Watkins was in Frankland Prison.
He had raised legal proceedings against one of the officers, a Mr
Robinson. On 5 December, without Mr
Watkins’s knowledge or consent and without any sufficient reason to do so, Mr
Robinson opened two letters addressed to Mr Watkins from Durham County Court in
order to see whether they related to the proceedings against him. He then handed the letters which he had
opened to Mr Watkins.
[38] The judge found that Mr Watkins was not
particularly embarrassed or humiliated by any of these incidents. Rather, in the judge’s view, it could be said
that in many ways he appeared to thrive on the conflicts.
[39] The three officers—and indeed a
considerable number of other officers besides—opened the respondent’s
correspondence with his lawyers in breach of r 37A or r 39 of the relevant
Prison Rules. It is settled, however,
that the rules are not intended to create private rights in favour of prisoners
and that their breach does not of itself give a prisoner a right to claim
damages in private law (see R v Deputy Governor of Parkhurst Prison, ex p
Hague [1991] 3 All ER 733, [1992] 1 AC 58).
The proceedings which Mr Watkins raised against the Home Office and the
individual officers therefore took the form of an action for misfeasance in
public office. But in order to establish
liability for misfeasance, the claimant must show that the officer was at least
recklessly indifferent to the illegality of his act (see Three Rivers DC v
Governor and Company of the Bank of England (No 3) [2000] 3 All ER 1
at 10, [2003] 2 AC 1 at 193 per Lord Steyn).
Here the judge held that, except in the case of the three officers just
mentioned, Mr Watkins had failed to establish this ingredient of his claims. The judge therefore dismissed the claims
against all the other officers.
[40] In his particulars of claim the
respondent specified a number of ways in which he said that he had suffered
injury as a result of the officers’ acts, among them a claim that his sense of
pride and dignity was severely injured.
The judge did not find that he had established any of these heads of
injury. Therefore, despite concluding
that the three officers had acted in a malicious or reckless way, the judge
dismissed the respondent’s claims on the ground that the tort of misfeasance
was not actionable per se and the respondent had not suffered any loss or
damage as a result of what the officers had done. Mr Watkins appealed against this aspect of
the judge’s decision.
[41] The Court of Appeal identified the
question at the heart of the appeal as being whether proof of damage is a
necessary ingredient of the tort of misfeasance in public office. The court proceeded to answer that question by
saying that a claimant’s right of action was complete even without proof of
special damage where a defendant infringed a right which could be identified as
a constitutional right of the claimant.
Holding that the officers had infringed the respondent’s constitutional
right of access to the courts, the Court of Appeal
368
allowed his appeal, awarded him £5 by way of general
damages and remitted the case to the judge to determine whether an award of
exemplary damages should be made and, if so, for what amount.
[42] The issue in the appeal to this House by
the Home Office is whether the Court of Appeal was correct to hold that a
claimant could succeed without proof of special damage where the defendant’s
misfeasance in public office interfered with a ‘constitutional right’ of the
claimant.
[43] The somewhat disjointed history of the
tort which is now known as misfeasance in public office has been traced in the
literature and in several judgments. It
would serve no useful purpose for me to add to what my noble and learned
friend, Lord Bingham of Cornhill, has said about it in his speech. But his survey shows that the plaintiff has
always had to prove that he suffered material damage as a result of the
defendant’s misfeasance. Take, for
instance, Henly v Lyme Corp (1828) 5 Bing 91, 130 ER 995. The defendants held the famous cob at Lyme
under letters patent from Charles I, which obliged them to maintain the sea
walls. The plaintiff sued them for
failing to perform their duty. He
obtained a verdict on two counts. One
was to the effect that, with the intention of injuring, prejudicing and
aggrieving the plaintiff, and in order to deprive him of the use and benefit of
certain lands and cottages, the defendants had allowed the sea defences to fall
into a ruinous state with the result that his lands and cottages were flooded
and he was ‘greatly injured and damnified’.
The defendants sought to have the judgment on the two counts arrested,
chiefly on the ground that, since the defendants’ obligation to repair the
walls had been imposed by the letters patent from Charles I, the Crown alone
could take advantage of a breach of the conditions of the grant. That argument might well have had some force
if the plaintiff had not suffered any damage as a result of the defendants’
failure, but Best CJ held (at 107), that it was ‘perfectly clear, that if a
public officer abuses his office, either by an act of omission or commission,
and the consequence of that is an injury to an individual, an action may be
maintained against such public officer’.
He went on to hold (at 108) that, if by any act of negligence or any act
of abuse in his office by a public officer, ‘any individual sustains an injury,
that individual is entitled to redress in a civil action’. It is the fact that he suffers injury from
the abuse which gives the particular individual a right, which others would not
have, to seek redress.
[44] The decision of this House in Three
Rivers DC v Governor and Company of the Bank of England (No 3)
[2000] 3 All ER 1, [2003] 2 AC 1 shows that the position remains the same
today. In that case the issue was
whether recklessness on the part of a defendant would be sufficient to
establish liability for misfeasance in public office. The House held that it was. Counsel for the respondent in the present
case emphasised that in Three Rivers (No 3) the House had
not been concerned with whether the plaintiffs needed to allege that they had
suffered loss as a result of the defendant’s misfeasance—there were allegations
in plenty to that effect. That is, of
course, true but it does not take him very far if the claimant’s alleged loss
forms a material element in the tort as formulated by the House.
[45] I find it impossible to read the speeches
in Three Rivers (No 3) as proceeding on any other basis
than that material injury to the claimant is an essential element in a claim
for misfeasance in public office. The
majority of the Court of Appeal had held that the notion of proximity should
have a significant part to play in the tort of misfeasance, just as in
negligence. The House rejected that
approach. Lord Steyn commented ([2000] 3
All ER 1 at 10, [2003] 2 AC 1 at
369
193): ‘The state of mind required to establish the
tort … as well as the special rule of remoteness … keeps the tort within
reasonable bounds.’ He went on to hold
([2000] 3 All ER 1 at 12, [2003] 2 AC 1 at 196), that the plaintiff must
establish that the defendant acted not only in the knowledge that the act was
beyond his powers ‘but also in the knowledge that his act would probably injure
the plaintiff or person of a class of which the plaintiff was a member’. If Lord Steyn had thought that a claim could
lie without proof of loss, he could scarcely have failed to mention it in this
context. In fact, he considered ([2000]
3 All ER 1 at 12, [2003] 2 AC 1 at 196), that, by limiting the recoverable
losses in this way, the test which he favoured—
‘represents a
satisfactory balance between the two competing policy considerations, namely
enlisting tort law to combat executive and administrative abuse of power and
not allowing public officers, who must always act for the public good, to be
assailed by unmeritorious actions.’
For Lord Steyn, therefore, the need to prove loss of the
requisite kind was of the very essence of the tort and played a crucial part in
defining its scope.
[46] Similarly, Lord Hobhouse commented
([2000] 3 All ER 1 at 45, [2003] 2 AC 1 at 231) that the tort is historically
an action on the case and is not generally actionable by any member of the
public. He continued:
‘The plaintiff must have
suffered special damage in the sense of loss or injury which is specific to him
and which is not being suffered in common with the public in general … The
plaintiff has to be complaining of some loss or damage to him which completes
the special connection between him and the official’s act.’
Lord Hobhouse distinguishes the plaintiff with a right of
action from others within the range of the official’s act precisely by the fact
that it has caused him loss or damage.
[47] I do not understand the Court of Appeal,
or indeed counsel for the respondent, to have questioned the general position
as stated in these authorities. Brooke
LJ held, however, that the requirement of proof of loss or damage does not
apply where the defendant has infringed ‘a right which may be identified as a
constitutional right’ (see [2004] EWCA Civ 966 at [48], [2004] 4 All ER 1158 at
[48], [2005] QB 883). Since in the
present case the respondent’s right which the three officers had infringed was
to be regarded as a right of this level of importance, ‘his cause of action in
misfeasance in public office was complete even without proof of special damage’
(see [2004] 4 All ER 1158 at [52], [2005] QB 883). Similarly, Laws LJ held (at [67]):
‘The wrongful act may
have interfered with a right of a kind which the law protects without proof of
any loss. In that case, the public
officer’s interference with the right will complete the tort and no actual
damage needs to be shown. This is the
second class of case. Its paradigm is
the instance where the public officer’s unlawful conduct has interfered with a
constitutional right.”
I need not consider whether, as counsel for the Home
Secretary suggested, by describing interference with a constitutional right as
the paradigm, Laws LJ was indicating that the same approach could be applied in
a wider class of cases.
370
[48] Brooke LJ sought (at [48]) authority for
this significant departure from the law laid down in Three Rivers DC v Bank
of England (No 3) in ‘[Ashby v White (1703) 1 Sm LC (13th
edn) 253] and the other election cases’ which—
‘show that if there is a
right which may be identified as a constitutional right, then there may be a
cause of action for an infringement of that right without proof of special
damage, provided that there is something more than mere infringement.’
He did not consider that one could safely explain Ashby
v White as a case involving the infringement of a franchise (being a
property right). He added (at [49]):
‘If this is the correct
analysis of Ashby v White, then there are some rights recognised by
English law which in constitutional significance are every much as important in
our liberal democracy as the right to vote.’
On this basis he held that the three officers should be
held liable because they had maliciously or recklessly infringed Mr Watkins’s
right of unimpeded access to his solicitor which formed an inseparable part of
his ‘constitutional right’ of unimpeded access to the courts themselves. (See [2004] 4 All ER 1158, [2005] QB 883 at
[3].)
[49] In my view, the dissenting judgment of
Holt CJ, which was upheld by your Lordships’ House in Ashby v White
(1703) 14 How St Tr 695, 1 ER 417, will not bear the weight that Brooke LJ
places upon it.
[50] The plaintiff was a burgess of Aylesbury
and, as a member of the corporation, claimed a right to vote for two members of
Parliament in an election in January 1701.
He alleged that White and his fellow constables, fraudulently and
maliciously intending to indemnify him, hindered him from giving his vote and
absolutely refused to permit him to give his vote ‘to the enervation of the
aforesaid privilege of him’. He claimed
to have been injured thereby and to have suffered damage to the value of £200. The jury returned a verdict in favour of the
plaintiff and the defendants applied for arrest of judgment.
[51] That is to put the dispute in purely
legal terms, but there was much more to it.
It was really a set-piece battle in a war between the two Houses of
Parliament and between the Whigs and the Tories, with Ashby, a poor cobbler,
being backed by the most prominent Whig and the constables by the Tory lord of
the manor. See E Cruickshanks ‘The case
of the men of Aylesbury, 1701–4’ in C Jones (ed) Party and Management in
Parliament, 1660–1784 (1984) p 87.
[52] The case came before the Queen’s Bench in
the autumn of 1703. Holt CJ’s views on
the question appear in at least three places: in the reported judgment, in a
report which he apparently drafted for the House of Lords when their decision
in the case brought them into conflict with the House of Commons and in a
version published from his manuscript in 1837.
Only his judicial opinion can provide authority, however, and it seems
to be agreed that the report reproduced in Smith’s Leading Cases is the most
reliable and complete.
[53] The majority of the court were in favour
of arresting judgment, inter alia, on the ground that the plaintiff’s privilege
of voting was not a matter of property or profit, so that the hindrance of it
was merely damnum sine injuria. They
also held that the issue of his right to vote was a matter for Parliament
rather than for the judges and that great inconvenience would follow if the
judges determined the point one way and Parliament the other. At least in retrospect, the importance of the
case in the history of the constitution lies in Holt CJ’s defence of the
jurisdiction of the Queen’s Bench against the privilege asserted by the
371
House of Commons.
But Ashby actually lost in the Queen’s Bench and so he applied for, and
was granted, a writ of error. On 14
January 1704, ten judges being in attendance, the majority of the Whig House of
Lords reversed the decision of the Queen’s Bench. At the time, this decision, upholding the
jurisdiction of the courts against the Commons, was seen as an attack by the
Lords on the right of the Commons to decide all matters concerning elections to
the House. (See (1703) 14 State Tr 695
at 696–778.) The resulting conflict
between the Houses was to continue until the Whigs regained control of the House
of Commons after the general election of 1705.
[54] In meeting the objection that Ashby’s
complaint lay within the jurisdiction of the Commons, Holt CJ exclaimed ((1703)
1 Sm LC (13th edn) 253 at 276), ‘O! by all means, be very tender of that’, and
went on to argue that, if a matter came within the jurisdiction of the court,
the judges were bound by their oaths to judge of it: ‘This is a matter of
property determinable before us.’ Later
(at 278), he acknowledged the right of the House of Commons to determine the
matter in the course of inquiring into an election, ‘but we must not be
frighted, when a matter of property comes before us, by saying it belongs to
the parliament; we must exert the queen’s jurisdiction’.
[55] The idea that the plaintiff’s privilege
or right to vote ‘as one of the persons qualified to represent all the Commons
of England’ could be regarded as a matter of property was therefore fundamental
to Holt CJ’s judgment and to his defence of the jurisdiction of the court. Earlier (at 270) he had described the right
as ‘a personal right’ as opposed to ‘a real privilege’. Of course, he may have been wrong to classify
the right to vote in this way and to say that a dispute about it was a dispute
about a matter of property. But what
matters for present purposes is how he chose to describe Ashby’s right to vote,
not whether his description was technically sound. Indeed, even if his classification of the
right were to seem forced, that would only emphasise its importance: despite
any difficulties, he formulated the claim in this way because he thought he
needed to. If, instead, he had
classified the right to vote as, say, a constitutional right relating to the
selection of members of the House of Commons, he would have run slap up against
the objection that the dispute was all a matter for the House of Commons, not
for the judges. It was precisely by
characterising the right to vote as a property right that Holt CJ avoided that
objection and affirmed the jurisdiction of the court in the face of the
assertion of the privilege of the House of Commons. And once the plaintiff’s right had been
characterised in this way, it was relatively easy to conclude that he was
entitled to damages for interference with the right even though he could not
prove actual loss.
[56] In the present case, the respondent has
never sought to frame his case as one of interference with a right of property
in the letters from his legal advisers.
So he cannot rely on Holt CJ’s actual decision. But Brooke LJ looks to it for support for the
view that a plaintiff is entitled to damages for interference with a
constitutional right. This respectfully
seems to me to involve the Court of Appeal ignoring the actual terms of his
decision and remodelling it in twenty-first-century terms which would not only
have been unrecognisable to its author but which he would actually have been at
pains to avoid.
[57] Moreover, although this House did not
characterise the dispute as one relating to property, their reasoning proceeded
on the basis that ‘The plaintiff, in this case, hath a privilege and a
franchise, and the defendants have disturbed him in the enjoyment thereof, in
the most essential part, which is his right of voting’ (see (1703) 14 How St Tr
695 at 786). So, even on that version,
there is no basis
372
for saying that Ashby v White cannot safely be
explained ‘as a case involving the infringement of a franchise (being a
property right)’.
[58] Leaving on one side the proper
interpretation of Ashby v White, the Court of Appeal’s decision is
noteworthy for the novel use which it makes of the concept of a ‘constitutional
right’ or ‘a right of this level of importance’ to create a type of misfeasance
in public office which is actionable per se.
For such an innovation to be workable, it would have to be possible to
identify fairly readily what were to count as ‘constitutional rights’ for this
purpose in a country without a written constitution. As it happened, in the present case the Court
of Appeal was able to refer to R v Secretary of State for the Home Dept, ex
p Leech [1993] 4 All ER 539 at 548, [1994] QB 198 at 210 where Steyn LJ had
commented that, ‘even in our unwritten constitution’, the basic right of access
to the court ‘must rank as a constitutional right’. There is, however, no magic in the term
‘constitutional right’. So, for
instance, Lord McCluskey must have been making much the same point in Leech
v Secretary of State for Scotland 1993 SLT 365 at 371, 1992 SC 89 at 98
when he spoke of ‘a basic civil right of access to the courts’. Moreover, as Laws J remarked in R v Lord
Chancellor, ex p Witham [1997] 2 All ER 779 at 787, [1998] QB 575 at 585,
although the right of access to the courts has been described as a
constitutional right, ‘the cases do not explain what that means’.
[59] Laws J sought to provide the necessary
explanation ([1997] 2 All ER 779 at 783–784, [1998] QB 575 at 581):
‘In the unwritten legal
order of the British state, at a time when the common law continues to accord a
legislative supremacy to Parliament, the notion of a constitutional right can
in my judgment inhere only in this proposition, that the right in question
cannot be abrogated by the state save by specific provision in an Act of
Parliament, or by regulations whose vires in main legislation specifically
confers the power to abrogate. General
words will not suffice. And any such
rights will be creatures of the common law, since their existence would not be
the consequence of the democratic political process but would be logically
prior to it.’
He considered a right to be ‘constitutional’ because it
can be abrogated only by express enactment.
But, if the adjective has any particular force, surely such rights can
be abrogated only by express enactment because they are ‘constitutional’, in
the sense that they are seen as part of the British constitution which
Parliament would not change except on due deliberation leading to express
enactment.
[60] That is certainly how this House
approached the converse case of a common law constitutional impediment in
Nairn v University of St Andrews [1909] AC 147. A number of women graduates of St Andrews and
Edinburgh, who, as graduates, were members of the general council of their
university, sought a declarator that they were entitled to vote under s 27 of the
Representation of the People (Scotland) Act 1868. The section provided that ‘every person’
whose name was on the register of the general council, if of full age ‘and not
subject to any legal incapacity’, was to be entitled to vote for the member of
Parliament for the university. This
House held that the section did not confer a right to vote on women
graduates. Lord Loreburn LC commented
(at 161), ‘It would require a convincing demonstration to satisfy me that
Parliament intended to effect a constitutional change so momentous and
far-reaching by so furtive a process’.
Similarly, Lord Ashbourne said (at 163), ‘If it was intended to make a
vast
373
constitutional change in favour of women graduates,
one would expect to find plain language and express statement’.
[61] Although embodied in a statute, in a
system of universal suffrage today the right to vote would fall within
everyone’s notion of a ‘constitutional right’.
And, doubtless, the principle of legality would apply in construing any
statutory provision which was said to have abrogated that right. Indeed, it is in the sphere of interpretation
of statutes that the expression ‘constitutional right’ has tended to be used,
more or less interchangeably with other expressions. In R v Secretary of State for the Home
Dept, ex p Simms [1999] 3 All ER 400 at 411, [2000] 2 AC 115 at 130, in the
general context of the power of the Home Secretary to make rules about
prisoners’ contacts with journalists who might investigate the safety of their
convictions, Lord Steyn said that there was a ‘fundamental or basic right’ at
stake and that, in interpreting the rule-making power in the Prison Act, the
principle of legality operated as a ‘constitutional principle’. In the well-known passage in his speech in
the same case ([1999] 3 All ER 400 at 412, [2000] 2 AC 115 at 131), Lord
Hoffmann spoke of legislation ‘contrary to fundamental principles of human
rights’ and of ‘the basic rights of the individual’. Fluctuations in terminology are only to be
expected, since the operation of the canon of construction does not depend on
attaching a particular label, ‘constitutional’ or ‘fundamental’ or ‘basic’, to
the legal rule in question. Rather, the
courts interpret the particular provision in this way because the substance of
the rule is perceived to be so important that Parliament must squarely confront
what it is doing when it interferes with it and must accept the political
cost. That approach to interpretation is
not confined, of course, to legislation affecting fundamental or basic
rights. For instance, in Mortensen v
Peters (1906) 8 F (JC) 93 the Danish master of a Norwegian steam-trawler
was prosecuted for using a particular method of fishing in the Moray
Firth. He argued that, although the
statute banning the method would have caught a British fisherman, it should be
construed as impliedly excepting all foreigners fishing from foreign vessels
outside the territorial jurisdiction of the British Crown. The defence failed for a variety of
reasons. Lord Salvesen commented (at
108) that it could scarcely be supposed that the British Parliament should pass
legislation placing British fishermen under a disability which did not extend
to foreigners. ‘I think’, he added, ‘it
was a just observation of the Solicitor General that, if legislation of this
nature had been proposed, and the words inserted which the Dean of Faculty
maintained were implied, it would never have been submitted by a responsible
minister or have received the approval of Parliament.’
[62] The term ‘constitutional right’ works
well enough, alongside equivalent terms, in the field of statutory
interpretation. But, even if it were
otherwise suitable, it is not sufficiently precise to define a class of rights
whose abuse should give rise to a right of action in tort without proof of
damage. Moreover, any expansion to cover
abuse of rights under ‘constitutional statutes’, as defined by Laws LJ in
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) at [62], [2002] 4
All ER 156 at [62], [2003] QB 151 at 186E-G, would carry with it similar
problems of deciding which statutes fell within the definition. Even supposing that these could be resolved,
it is by no means clear that the abuse of ‘constitutional rights’ or rights
under ‘constitutional statutes’ should necessarily attract a remedy which would
be denied for the abuse of other important rights. Is the prisoner who suffers no material harm
from abuse of his right to correspond with his solicitor necessarily more
deserving of a remedy than the patient who is actually perfectly healthy but
whose general practitioner
374
maliciously refuses to see him? Or than the applicant who is not actually
entitled to a social security benefit but who is maliciously denied the
appropriate hearing by the relevant official?
At least within the realm of tort law, questions about the availability
of a remedy are best answered by looking at the substance of the supposed wrong
rather than by reference to a somewhat imprecise label which lawyers might
attach to it in another connexion.
[63] The desirability of looking at the
substance of the matter is relevant to the present appeal. The Court of Appeal was prepared to grant the
respondent damages on the basis that the officers abused his constitutional
right of access to the courts. But, as
counsel for the Home Secretary pointed out, this is to put a somewhat
artificial overlay on the facts. Rules
37A and 39 of the Prison Rules were made in order to give practical expression
to the ‘constitutional right’ of prisoners to have access to the courts and to
a solicitor. But, for that very reason,
the officers were almost certainly not aware that they were interfering with
any constitutional right as such. What
they were doing was maliciously or recklessly failing to apply r 37A or
39. On the approach favoured by the
Court of Appeal, the officers would therefore be made liable not so much for
their actual malicious or reckless disregard for the rules, but for
unconsciously abusing a right which the rules embody. Again, there is a risk that the result would
depend on potentially difficult legal distinctions rather than on the nature
and impact of the defendants’ abuse.
[64] My Lords, despite the encircling
difficulties, it might be worth trying to deploy the concept of constitutional
rights in the law of tort if it represented a way forward which best fitted the
present state of the law. But it does
not. Most of the references to
‘constitutional rights’ are to be found in cases dealing with situations before
the 1998 Act brought convention rights into our law. In using the language of ‘constitutional
rights’, the judges were, more or less explicitly, looking for a means of
incorporation avant la lettre, of having the common law supply the benefits of
incorporation without incorporation. Now
that the Human Rights Act is in place, such heroic efforts are unnecessary: the
convention rights form part of our law and provide a rough equivalent of a
written code of constitutional rights, albeit not one tailor-made for this
country. In general, at least, where the
matter is not already covered by the common law but falls within the scope of a
convention right, a claimant can be expected to invoke his remedy under the
1998 Act rather than to seek to fashion a new common law right (see
Wainwright v Home Office [2003] UKHL 53 at [33], [2003] 4 All ER 969 at
[33], [2004] 2 AC 406 per Lord Hoffmann).
It may be—as counsel for the Home Secretary was inclined to concede,
even though the point was not fully argued—that someone in the respondent’s
position could now bring proceedings under s 8 of the 1998 Act for damages for
breach of certain of the guarantees in arts 6 and 8 of the convention. But, if so, in considering whether to award
damages, the courts would apply the principles developed by the European Court
of Human Rights (see R (on the application of Greenfield) v
Secretary of State for the Home Dept [2005] UKHL 14, [2005] 2 All ER 240,
[2005] 1 WLR 673). Exemplary damages
form no part of the existing jurisprudence of that court. Therefore, in my view, it would be wrong in
principle for the House now to develop the common law so as to create a
situation where exemplary damages could be awarded when they would not be
available in equivalent proceedings for breach of the relevant convention
right. No award of exemplary damages
would be competent, either, it may be noted, in equivalent proceedings under
Scots law.
375
[65] The availability or non-availability of
other remedies for the three officers’ misfeasance cannot be a decisive factor
in deciding whether the respondent has a claim for damages without proof of
material damage. Nevertheless, it is
worth noting that, as Lord Bingham suggests, the law and the disciplinary
system should not in fact be powerless to deal with officers who may, in
future, abuse what is an important position of trust.
[66] For these reasons, as well as those given
by Lord Bingham, I too would allow the appeal and make the order which he
proposes.
LORD WALKER OF GESTINGTHORPE.
[67] My Lords, I have found this a difficult
and troubling appeal. The unchallenged findings of Judge Ibbotson are that on
three separate occasions (on 17 September 1998 and 5 October 1998 at Wakefield
Prison, and on 5 December 2000 at Frankland Prison) three different prison
officers, deliberately and in bad faith, broke the Prison Rules by opening or
reading correspondence addressed to the respondent, Mr Watkins, (on the first
two occasions) by his solicitors and (on the third occasion) by the Durham
County Court. In the first incident the
officer took out and inspected the contents of one package which had already
been opened, and opened and inspected the other in front of the
respondent. His protest was met by the
comment ‘so report me to John Major’ (the prison officer cannot have taken much
interest in current affairs). In the
second incident the officer ‘proceeded to rip open’ a letter in front of
him. In the third incident the officer
read documents likely to relate to proceedings in which he (the officer) was a
defendant (the officer’s evidence of his ignorance of the proceedings was
disbelieved, as he had signed a statement of truth on his defence).
[68] Each of these incidents was an immediate
and intentional breach of the respondent’s right to unimpeded access to the
court, either directly or through his solicitors. In its impact on the respondent each incident
was likely to be much the same as an actual assault which occasioned no lasting
harm, such as a slap in the face.
Whether or not the respondent suffered distress or depression as a
result (and the judge commented that he appeared ‘to thrive on these
conflicts’) it was an affront, and a deliberate affront, at which he was
entitled to feel real indignation. But
whereas even the most trifling and transient physical assault would undoubtedly
have given the respondent a cause of action in private law for trespass to the
person, sounding in damages (and if appropriate aggravated or exemplary
damages), if the appellant Home Office is right the affronts which the
respondent suffered give him no private law remedy. He would be left with the possibility of
obtaining vindication of his rights by proceedings for judicial review (with no
prospect of damages), by enforcement of the disciplinary code to which prison
officers are subject, or by a criminal prosecution for misfeasance in public
office. He cannot obtain relief by
proceedings for the tort of misfeasance in public office, it is said, because
he has suffered no damage which the law will recognise. This is a far cry from the stirring language
of Holt CJ in Ashby v White (1703) 1 Sm LC (13th edn) 253 at 273,
‘If the plaintiff has a
right, he must of necessity have a means to vindicate and maintain it, and a
remedy if he is injured in the exercise or enjoyment of it; and indeed it is a
vain thing to imagine a right without a remedy; for want of right and want of
remedy are reciprocal.’
[69] Mr Sales (on behalf of the Home Office)
has submitted that these avenues provided by public law give the respondent
adequate protection. I have to say
376
that I am rather sceptical about that. Judicial review (with the preliminary filter
of the need for leave, and little prospect of obtaining an order for
cross-examination of witnesses) is hardly a satisfactory substitute for an
action in the county court. No
disciplinary action was (as the Treasury Solicitor has informed the
respondent’s solicitors) taken against any of the officers. Nor has there been any prosecution, in which
a different burden of proof would apply.
[70] Two of the incidents on which the
respondent succeeded (and another 22 allegations on which he failed) occurred
before the coming into force of the Human Rights Act 1998. Only the last incident at Frankland Prison
occurred after the Act came into force.
Unsurprisingly, therefore, the respondent’s proceedings did not seek to
rely on ss 6–8 of the 1998 Act. Before
the House each side was, for different reasons, a little wary about the
significance of the Act. The position of
the Home Office was that a claim would now be possible in comparable
circumstances, but that a claimant would certainly not obtain exemplary damages
and would probably be told that a declaration, or at best nominal damages,
amounted to just satisfaction: see R (on the application of
Greenfield) v Secretary of State for the Home Dept [2005] UKHL 14,
[2005] 2 All ER 240, [2005] 1 WLR 673.
The respondent’s position was that it was not clear that substantial
damages might not be awarded, but that in any case the coming into force of the
1998 Act should not deter the House from developing the tort of misfeasance in
public office as justice and principle required, since the Act’s reach (and the
requirements for liability under ss 6–8) are very different from those of the
tort.
[71] Mr Rabinder Singh QC (for the respondent)
also made some powerful general submissions in response to the argument that if
the respondent’s right was a public law right, the most appropriate remedy must
be a public law remedy. He cited the
well-known observations of Lord Wilberforce in Davy v Spelthorne BC
[1983] 3 All ER 278 at 285–286, [1984] AC 262 at 276, as to the need for
caution in importing the expressions ‘private law’ and ‘public law’ into
English law, which typically fastens, not on principles, but on remedies (I would
also respectfully note the valuable observations of my noble and learned
friends Lord Hope of Craighead and Lord Rodger of Earlsferry in Davidson v
Scottish Ministers [2005] UKHL 74 at [41]–[42], [73]–[77], (2005) Times, 19
December, 2005 SC(D) 10/12). As Mr Rabinder Singh points out, there is
something strange about giving the label ‘private law tort’ to misfeasance in
public office, a tort which (by definition) can be committed only by a public
official acting as such.
[72] That is one of the special features of
the tort. Another is that it is an
intentional tort, and moreover one which can be established only by proof of
bad faith. As a matter of principle an
intentional tort, and especially one necessarily involving bad faith, may
differ from other torts in the need for proof of actual damage (see the
observations of Lord Hoffmann in Wainwright v Home Office [2003] UKHL 53
at [42]–[46], [2003] 4 All ER 969 at [42]–[46], [2004] 2 AC 406, not resiling
from what he said in Hunter v Canary Wharf Ltd, Hunter v London Docklands
Development Corp [1997] 2 All ER 426 at 452, [1997] AC 655 at 707) as it
does in relation to causation (see Smith New Court Securities Ltd v
Scrimgeour Vickers (Asset Management) Ltd [1996] 4 All ER
769, [1997] AC 254 at 279–280).
[73] There are nevertheless formidable
objections (set out more fully in your Lordships’ speeches) to the proposition
that the tort of misfeasance in public office should be actionable without
proof of special damage, whether the proposition is put in that wide form, or
is limited to cases where the misfeasance takes the form of targeted malice
which breaches the claimant’s constitutional rights. I will list very briefly the main objections
to the narrow proposition.
377
(1) Although the point at issue seems never to have
risen for decision either in England or elsewhere in common law jurisdictions,
the great weight of authority treats damage as an element of the tort, and
(apart from the decision now under appeal) there is no definite authority the
other way. (2) Some cases of ‘targeted’
malice are very clear, such as the early Canadian case of Roncarelli v
Duplessis [1959] SCR 121 (discussed by the Supreme Court of Canada in
Odhavji Estate v Woodhouse [2003] 3 SCR 263 at 279, (para 19)). But the weight of authority is against
treating targeted malice as being in a special category, rather than as being
at the brightest end of a spectrum (see Odhavji Estate v Woodhouse at
280 (para 22) and the decision of this House in Three Rivers DC v Governor
and Company of the Bank of England (No 3) [2000] 3 All ER 1 at 8–9,
[2003] 2 AC 1 at 191–192 (per Lord Steyn), [2000] 3 All ER 1 at 34–37, [2003] 2
AC 1 219–223 (per Lord Hutton), [2000] 3 All ER 1 at 44–45, [2003] 2 AC 1 at
230–231 (per Lord Hobhouse) and [2000] 3 All ER 1 at 49, [2003] 2 AC 1 at 235
(per Lord Millett, who expressed most strongly the view that there is a single
tort of intention)). A rule that the
targeted malice limb (only) of the tort is actionable without proof of special
damage would therefore be unprincipled and difficult to apply. (3) The same objection applies to the notion
that the scope of the tort could be kept within sensible boundaries by making
it actionable per se only if there is a breach of a constitutional right
enjoyed by the claimant. In R v
Secretary of State for the Home Dept, ex p Leech [1993] 4 All ER 539 at
548, [1994] QB 198 at 210, Steyn LJ said of a prisoner’s right to
confidentiality for correspondence with his solicitors: ‘Even in our unwritten
constitution it must rank as a constitutional right.’ But so long as we have no written
constitution, any syllabus of the citizen’s constitutional rights (or, equally,
of the citizen’s ‘core’ constitutional rights) is bound to be controversial. Mr Sales suggested that the notion of core
constitutional rights has a part to play in the development of the law, but
only in the field of the interpretation of primary legislation (as in R v
Secretary of State for the Home Dept, ex p Simms [1999] 3 All ER 400 at
411–412, [2000] 2 AC 115 at 130 (per Lord Steyn), [1999] 3 All ER 400 at 412, [2000] 2 AC 115
at 131 (per Lord Hoffmann)) or in the review of secondary legislation (as in
Ex p Leech); in that area he said, the court can take a nuanced
approach. I see a lot of force in
that. (4) The 1998 Act is now in force
and (if the facts of the case occurred again) a prisoner would have a clear
claim under ss 6–8 of the Act by reference to both art 6 and art 8 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 (as set out in Sch 1 to the 1998 Act) (the art 8 claim appears to me to be
the stronger). Despite R (on
the application of Greenfield) v Secretary of State for the Home Dept [2005]
2 All ER 240, [2005] 1 WLR 673, the developing domestic jurisprudence under the
1998 Act may lead to modest (but more than nominal) awards of damages in cases
of deliberate official wrongdoing, even if it does not occasion monetary loss.
[74] I do not include among what I see as
powerful objections either the historical origins of the tort, or fear of a
flood of what Mr Sales called gold-digging claims. Historically the tort of libel developed, as
misfeasance in public office did, from the action on the case. But both have come a long way since
then. If (as is still the case after
Rantzen v Mirror Group Newspapers (1986) Ltd [1993] 4 All ER
975, [1994] QB 670) a claimant can recover general damages of over £100,000 for
a single libel without proof of any monetary loss whatsoever, ancient legal
history cannot be a good reason why misfeasance in public office should not
develop in the same direction.
378
[75] Nor am I impressed by predictions of a
flood of unmeritorious claims. It is not
easy to bring a claim of this sort.
Experienced judges (and the civil juries whom they sometimes have to
direct in such cases) know that the police and prison officers have a difficult
job to do, often in the face of provocation, and that they are not
infallible. Awards of general or
aggravated damages take these matters into account, and are rarely
extravagant. Extravagant awards can be
and are reduced on appeal. But
deliberate abuse of public office directed at an individual citizen calls for
an effective sanction enforceable as of right by that citizen. Exemplary damages, even if anomalous, have a
part to play in discouraging abuses of power in a democratic society (see
Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29,
[2001] 3 All ER 193, [2002] 2 AC 122).
[76] Nevertheless the four main difficulties
outlined above, which are much more fully developed in the speeches of your
Lordships, lead me, with some reluctance, to the conclusion that this appeal
must be allowed.
LORD CARSWELL.
[77] My Lords, I have had the advantage of
reading in draft the opinions prepared by my noble and learned friends, Lord
Bingham of Cornhill and Lord Rodger of Earlsferry. I am in full agreement with their reasons and
conclusions and wish to add only a few observations.
[78] The distinction between actions in tort
in which it is not necessary to prove special or material damage in order to
succeed (torts actionable per se) and those in which such proof is an essential
ingredient of the claimant’s case stems from the ancient dichotomy between
actions in trespass and actions on the case.
The discussion of the development of the two forms of action contained
in Maitland, The Forms of Action at Common Law, Lecture VI shows how
that development may be regarded as no more than accidental and the distinction
is described in Clerk & Lindsell on Torts (19th edn, 2006) p 29
(para 1.46) as being of limited relevance; for a useful synopsis see also
Prosser & Keeton on Torts (5th edn, 1984) pp 28–31.
[79] In actions on the case, the category into
which the tort of misfeasance in public office falls, ‘damage is the gist of
the action’ (see Salmond and Heuston on Torts (21st edn, 1996) p 6) and
the claimant will fail if he cannot prove it.
For the reasons set out by Lord Bingham, I agree that the authorities
establish that that tort is properly classed among those in which proof of
material damage is required. I also
agree with his opinion that the conclusion reached by the Court of Appeal, that
where the tortious act amounts to a breach of the claimant’s constitutional
rights it is actionable per se, cannot be supported. In my opinion it would not be a readily
workable expedient and it has insufficient authority to support it.
[80] One might question, more generally,
whether the law should continue to support a distinction between those actions in
which proof of material damage is needed and those in which there is no such
requirement. It might not unreasonably be said that any civil wrong should
carry damages and that those who deliberately flout the law and deprive others
of their rights by abusing their position should be liable to the victims of
such acts. The common law is capable of
accommodating changes necessary to allow it to adapt to modern needs, as your
Lordships recognised in the recent torture case A v Secretary of State for
the Home Dept (No 2) [2005] UKHL 71, [2006] 1 All ER 575,
[2005] 3 WLR 1249. It
379
might therefore be theoretically possible to abolish
the distinction and hold that all torts are actionable without proof of
material damage.
[81] I am not satisfied, however, that it
would be advisable for the House to take such a course, were it minded to do
so. The underlying dichotomy between
trespass and case would still remain, even if it became of even less relevance
than now. It would be a departure from
the prevailing trend in other common law jurisdictions and would be out of
harmony with the Scots law governing damages in actions for delict. There are other avenues for a claimant in a
case of the present type who cannot establish any material damage, even if they
may not afford a perfect remedy in all cases.
Finally, it would be likely to open the door to claims for exemplary
damages in a broader class of cases than those in which they may now be
awarded. Notwithstanding the fact that
the House has ruled in Kuddus v Chief Constable of Leicestershire
Constabulary [2001] UKHL 29, [2001] 3 All ER 193, [2002] 2 AC 122 that
exemplary damages may in principle be awarded in cases of misfeasance in public
office, I should myself prefer to confine the award of such damages very
closely indeed.
[82] Although the possibility of rationalising
the law in this way may have some attraction at first sight, I think that for
these reasons it should be resisted. If
at some time it is thought advisable to give the idea further consideration, I
think that it should be done by the Law Commission, which would be well placed
to consider in depth the issues and possible consequences of such a change in
the law. In the present state of the
law, however, I agree with your Lordships that the judge was correct to rule as
he did, and I would allow the appeal and make the order proposed.
Appeal allowed.
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