JOHN CARNDUFF v INSPECTOR ROCK & Chief Constable West Midlands Police [2001] EWCA Civ 680

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
His Honour Judge Nicholl (sitting as High Court Judge)
[2001] EWCA Civ 680Case No Case No: A2/2000/3081Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 11th May 2001
Between
JOHN CARNDUFFClaimant/ RespondentINSPECTOR ROCK & Chief Constable West Midlands PoliceDefendants/ Appellants
Before
Lord Justice WallerLord Justice LawsLord Justice Jonathan ParkerMr Nicholas Paul (instructed by George Jonas & Co for the Claimant)Mr Richard Perks (instructed by Legal Services, Civic House, 156 Great Charles Street, Birmingham for the Defendants)Date 11 May 2001

LORD JUSTICE WALLER:

The

[1]claimant is a registered police informer. He seeks to recover payment for information supplied to the West Midlands Police. He asserts that the Chief Constable of the West Midlands Police (the second defendant) and/or Inspector Rock (the first defendant) are liable to pay for information provided pursuant to a contractual obligation, the nature of which I will spell out in a little more detail below. The defence pleads that no contractual liability exists and that in any event the claimant has not earned any remuneration.[2]The action had got to the stage where disclosure of documents was being sought in relation to all issues. That seemed to involve at least the possibility that the police might have to reveal to the claimant material for which they would claim Public Interest Immunity from disclosure in relation to what information was supplied by the claimant and its value. In those circumstances the defendants applied to strike out the claim.[3]That application was argued before the disclosure application and Judge Nicholl dismissed the application. He also refused permission to appeal. The disclosure application was not proceeded with, pending an application for permission to appeal being made to this court. Permission to appeal was granted by Lady Justice Hale, and this is the appeal from the decision of Judge Nicholl dated 6 th September 2000.[4]The two points taken in the application to strike out were that "no concluded contract was pleaded" and "to enforce any such agreement would be contrary to public policy." It is apparent that before the judge the point was also taken that there was no intention to create legal relations, a point dismissed by the judge as "impossible to determine simply at this stage under an application to strike out." Before us Mr Perks suggested that there were four grounds on which the court should exercise its discretion to strike out:(1) That the agreement as pleaded was incomplete;(2) that the method of enforcement was unenforceable;(3) that there was no intention to create legal relations; and(4) that the action should be struck out on the grounds of public policy. His first ground clearly equated with the first basis in the application. His second and fourth grounds are in fact very much intertwined and reflect the second basis in the application, but in reality go to the question not whether the contract itself was contrary in some way to public policy but whether the action can be fairly tried having regard to certain public policy considerations. The third ground was only faintly pursued as a basis for striking out.[5]The main thrust of Mr Perks' submissions can I think be summarised in this way. First, he did not suggest that it was not possible to have a legally enforceable agreement as between the police and an informer. For example, an agreement that offered a fixed price for certain information could be such an agreement. Second however, an agreement that did not fix a price, he submitted, would be unenforceable both because the price would be uncertain and unascertainable, and/or because the price would be unascertainable without the risk of disclosure of information which the police would be entitled to have protected on Public Immunity grounds. Third, any action to enforce an agreement which, when it came to be enforced, would either involve the disclosure of information that the police were entitled to have protected by Public Interest Immunity, or an unfair trial if they exercised their right to withhold the information, should be struck out on public policy grounds. The Amended Statement of Claim[6]The pleading is in the following terms:- "1. In approximately 1984, it was agreed orally between(1) the Plaintiff and(2) officers of the West Midlands Police Force acting as principals or alternatively as agents for and on behalf of the Second Defendant, that the Plaintiff would provide information and assistance to the police to enable them to investigate suspected criminals and criminal offences, and/or to arrest and prosecute persons suspected of crime, and/or to prevent crime, and that in return for such information and assistance and in consideration thereof the Plaintiff would be paid reasonable remuneration. 2. It was an implied term of the agreement that the remuneration paid to the Plaintiff as aforesaid would be reasonable, taking into account the seriousness of the criminal activity to which his information and assistance related; the financial rewards likely to accrue to criminals from the relevant criminal activity; the value to the police of his information and assistance; and the personal danger to which the Plaintiff and his family would be exposed as a result of his providing information and assistance as aforesaid. 3. On many occasions from about 1984 onwards the Plaintiff provided information and assistance for reward to various officers of the West Midlands Police Force, including officers of the Regional Crime Squad and the West Midlands Drugs Squad, pursuant to the said agreement. The Plaintiff was on many occasions paid reasonable remuneration in consideration of his information and assistance, determined in accordance with the principles which had been agreed as aforesaid. 4. In or about 1996 the Plaintiff became aware that one Zafar Ali Mirza and others planning to supply heroin in large quantities in the U.K. The Plaintiff offered, for reward, to provide information and assistance to officers of the West Midlands Police, to enable them to prevent the planned crime, to arrest and prosecute the criminals, and to seize the drugs. He had oral discussions with various officers, including Detective Constable Gary Sykes (who was one of the Claimant's "handlers"), and the First Defendant. The Plaintiff's offer was accepted by the First Defendant, who acting as a principal and/or as an agent for and on behalf of the Second Defendant (the Chief Constable). It was an implied term of the agreement that the Plaintiff would be paid reasonable remuneration for his information and assistance, in accordance with the principles referred to in the above paragraphs. 5. The Plaintiff, pursuant to the said agreement, duly provided information and assistance to the police, and introduced an "undercover" police officer who pretended to be interested in buying heroin, Zafar Ali Mirza. 6. As a result of the Plaintiff's information and assistance, which the police well knew he had provided pursuant to the said agreement, police officers were able to arrest and prosecute Zafar Ali Mirza and others involved in the illegal supply of heroin, and to seize a large quantity of heroin. The officers accepted the benefits accruing from the Plaintiff's services, knowing that his services were not intended to be gratuitous. PARTICULARS . . . . "[7]It will be seen that there are in fact two agreements pleaded. The first pleads an overall agreement under which the claimant undertook to provide information and the police undertook to pay for the same. That was said to include an implied term as to the basis on which remuneration was to be paid, including(1) the seriousness of the criminal activity;(2) the financial rewards likely to accrue to criminals from the relevant criminal activity;(3) the value to the police of this information and assistance; and(4) the personal danger to which the claimant and his family would be exposed.[8]The alternative agreement relates to 1996 and was either part of the general first agreement or it was free standing. By this agreement the claimant offered for reward certain information. The offer was accepted but again the implied term was in accordance with the principles of the implied term alleged in the first agreement.[9]It will be noted that in neither of the alleged agreements was any price fixed. Mr Perks further pointed out how the terms pleaded contemplated establishing as part of the case the value of the information so far as the police were concerned, i.e. the degree to which the claimant's information assisted the police in their task. He further submitted that if the court were to embark on any exercise in relation to assessing the reasonableness of the remuneration claimed, that might involve making comparisons by reference to information provided by other informers. Thus he submitted that this is a case where once assessment of the appropriate payment was being undertaken either there would be a risk of disclosure of highly sensitive information which the police should be entitled to protect, or there would be a risk of an unfair trial.[10]For the purpose of a strike out one must assume that what is pleaded can be established, and it seems to me that should include the implied terms pleaded in this case.[11]I am not persuaded that the contract, if made in the terms pleaded, would be too uncertain to be enforced. I am also clear that the judge was right in saying that evidence would be necessary before any decision could be taken as to whether there was an intention to create legal relations.[12]Leaving on one side the difficulties in relation to disclosure and Public Interest Immunity for the present, it seems to me that however difficult it might be for the court to find a basis of what the reasonable remuneration or value should be, the court could do the exercise. I have much more sympathy with the argument that no legally enforceable bargain was actually entered into. It seems to me very probable that what the police did was to offer ex gratia (i.e. without any intention of entering into a legal obligation) money for information once it was supplied. In a somewhat similar case this was the decision reached by Douglas Brown J in Robinson v The Commissioners of Customs and Excise 17 th April 2000. But in that case the point was tried as a preliminary issue and evidence was called.[13]Thus I would not be prepared to strike out the statement of claim on the basis of lack of certainty, and I would not be prepared to strike out the claim on the basis of lack of intention to create legal relations.[14]I now turn to what is the most difficult aspect of the case. On any view by virtue of the claimant's pleaded case there is a risk that if the matter is to be tried fairly, at least when it comes to assessing the value of any remuneration, the police will be under pressure to disclose highly sensitive information for which they would wish to claim Public Interest Immunity. If a fixed price was offered for information, there would be no risk of sensitive information being required to be disclosed in relation to that calculation. Sight should not however be lost of the fact that if what had been pleaded was a fixed price for the information supplied, but the police had put in issue whether they had offered the same or entered into legal relations in relation to the same, some disclosure in relation to that issue would have to be made. There might be some dispute as to whether Public Interest Immunity could be claimed for that material, but Mr Perks did not suggest that the risk in such a case was such that it should not be allowed to proceed.[15]It seems to me important to analyse what the court is being asked to do in this case. First it is not (as I see it) in reality being asked to say that this agreement itself is unenforceable as contrary to public policy. I say that because so far as public policy is concerned in so far as it touches the making of the agreement, there cannot be anything which differentiates between a promise to pay £1000, and a promise to pay a "reasonable sum". Second, it is not being said that the carrying into effect of this agreement i.e. the providing of information to the police in return for payment is illegal and thus contrary to public policy. Third, the court is not being asked to say that every case brought by an informer against the police for payment is an abuse of the process of the court because some difficulty might be encountered when dealing with such claim as a result of claims that may be made for Public Interest Immunity.[16]What the court in reality is being asked to do is to stop this particular case because (so it is said) it is obvious that no fair trial can take place either because(1) it simply could not take place fairly without access to a great deal of highly sensitive information which the police should not be forced to disclose; and/or(2) because the police will be harassed even by having to argue about questions of Public Interest Immunity which might expose their men and women, and/or other informers to a risk, and which might thus force the police to pay rather than be exposed or expose others.[17]Under which rule is the court being asked to exercise this power? CPR 3.4 provides:- "(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case. (2) The court may strike out a statement of case if it appears to the court -(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or(c) that there has been a failure to comply with a rule, practice direction or court order.[18]CPR 24.2 provides:- "The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if - a) it considers that - i) "that claimant has no real prospect of succeeding on the claim or issue; or ii) that defendant has no real prospect of successfully defending the claim or issue; and b) there is no other compelling reason why the case or issue should be disposed of at a trial."[19]It would seem as though the judge thought he was being asked to exercise the court's power under CPR 24.2. I have to say that I am doubtful whether in truth that is so. What is more the jurisdiction that the court is being asked to exercise does not seem to me to fall clearly within CPR 3.4.[20]If one assumes that what is pleaded must be accepted for present purposes, it is not because the claimant is bound to fail, or because no reasonable cause of action is pleaded, nor because the claim is an abuse of the process of the court, that the court is being asked to act. What it seems to me the court is being asked to do is to exercise some inherent power to stay proceedings on the basis already set out above.[21]Before the court exercises such a jurisdiction it should act with extreme caution, particularly if the difficulties on which reliance are placed would have been readily apparent to the parties before they made their agreement.[22]I have a great deal of sympathy with the view that the claimant has no real prospect of success in this case, but my reason for taking that view relates to the fact that it seems to me most unlikely that he will ever establish that the police intended to create legal relations and ever entered into a contract of the kind alleged. My reason for taking that view is based on the very obvious considerations such as the reluctance of the police ever to have to explain the basis on which they paid or refused to pay a reward to an informant in any particular case. The very thought that they would agree that a reward would be calculated by reference to the success or otherwise of the information supplied, and thus risk the disclosure of highly sensitive material which might, if it became public, put at risk their own personnel and/or some other informers, seems extremely far-fetched.[23]But on this application the court must assume that the claimant will establish what he has pleaded. On that basis it must be assumed that the claimant will establish that in full awareness of all the difficulties, the police made a binding contract to pay for information which was intended to be enforceable in court. It is a draconian step to take to say that at this stage, despite being able to establish all that, the claimant should still not be entitled to pursue his claim.[24]The Court of Appeal in Savage v Chief Constable of Hants [1977] 1 WLR 335 considered the position of an informer. Savage was alleging a contract with the police to pay for information, either a sum calculated by reference to a percentage of the value of property recovered, or a reasonable sum. The Court of Appeal decided that he was free to bring his action. It is true that the main thrust of the argument related to Savage's right to waive his anonymity. But the court also considered other bases on which the case might have been summarily dismissed including the question whether there was any intention to enter into legal relations. The court decided that that point should be tried either as a preliminary point or at a full trial. Potter LJ in his judgment said:- "Further, it is clear that the judge based his decision in large measure upon his anticipation of the likely outcome of the plaintiff's applications for discovery and interrogatories later in the action. The judge said he could think of nothing more damaging to the police effort than to make material of the sort which would be sought available from police files. He said:
"This may be new law but I must grasp the nettle and rule upon it. A new type of action needs new principles of law or a greater application of old principles. I have not the slightest doubt that it would be very much contrary to the public interest to allow any part of such material into the public domain or into the possession of a police informer and then from him to the criminal fraternity."
Having concluded that discovery would be refused for that reason, he regarded it as an additional ground to strike out the action. There are two points to be made in that respect. First, the fact that difficulties may be encountered on discovery does not itself render an action vexatious or an abuse of process. Secondly, and particularly in a position where "new law" may have to be made, it seems to me quite wrong to consider issues of possible privilege in advance and in vacuo rather than on the basis of the particular facts and consequent claims for privilege which are asserted in the light of the issues as crystallised at the discovery stage. I, too, would allow the appeal."[25]I respectfully agree with that approach.[26]I see all the obvious difficulties that there may be in relation to the disclosure of highly sensitive material if this case is allowed to go forward. But, as I see it, the court should at least at this stage be considering only two alternatives. It should either say this case can be decided summarily against the claimant on the basis that it is simply inconceivable that the police will have made a binding agreement as alleged, or, if it cannot do that, it should allow the question of whether there was a legally binding agreement to be fought out as a preliminary point. If the police succeed at the preliminary point stage that is an end to the matter. If the claimant succeeds at that stage, then what will have been demonstrated is that despite all the difficulties, the police will have made a binding agreement intended to be enforced in a court of law. The court should then see whether there is machinery available to enable the questions that will arise thereafter to be tried fairly. I believe that machinery should and would if necessary be found, because it would not seem to me to be right in such circumstances that the police should simply be released from a binding contract that on this assumption they have made with their eyes open.[27]Possibly, if it could be demonstrated that even a preliminary point could not be fairly tried because disclosure of highly sensitive material might be forced on the police, then the court might have to consider seriously whether in the public interest some draconian power should be exercised. But the answer to that point is threefold.(1) Savage effectively rejected the point;(2) it is accepted that an agreement to pay £10 for a specific piece of information might well be a legally binding agreement; if there was a dispute about whether such an agreement had been reached the risk of sensitive material being divulged would be the same; and(3) in any event I do not see any great risk that sensitive material will need to be divulged for the trial of that point.[28]I think the judge was right and I would dismiss the appeal. LORD JUSTICE LAWS:[29]I gratefully adopt the account of this appeal's factual and procedural background given by my Lord Waller LJ, whose judgment I have had the advantage of reading in draft, as I have that of Jonathan Parker LJ. I agree with my Lords that there is nothing in this appeal beyond the proposition, which was the last of four points taken by Mr Perks for the appellant, that the action should be stopped because it would be contrary to public policy, or against the public interest, to allow it to proceed.[30]In my judgment the pleadings in the case are critical to the question whether that proposition is good or bad. Waller LJ has set out the material terms of the amended Statement of Claim. It demonstrates that the respondent claimant will seek inter alia(1) to prove that he had provided information and assistance to the police on many occasions from 1984: see paragraph 2 of the amended statement of claim;(2) to prove that he had held discussions with various officers about the actual or suspected criminal activities of the man Mirza and others: paragraph 4;(3) to prove that information provided by him to the West Midlands Police was instrumental (my word) in bringing Mirza, and others involved in the illegal supply of heroin, to justice, and in enabling the police to seize a large quantity of heroin: paragraph 6 ("As a result of the Plaintiff's information and assistance... police oficers were able to arrest and prosecute..."), and(4) to invite the court to assess the degree of his information's utility, and to put a value upon it: that is part and parcel of his case on quantum: see paragraph 2 ("the value to the police of his information and assistance").[31]On an application to strike out a claim, where the court is not invited to form any judgment about the evidence, the court ordinarily proceeds on the footing that the facts alleged by the claimant in his pleading are true: or, more accurately I think, that the claimant may establish the facts alleged. It is plainly no departure from that principled approach to treat the contents of the defence pleading as no less relevant, where the question is - as it is here - whether the disputed issues disclosed on the pleadings can be tried without injury to the public interest: injury, I should at once accept and indeed emphasise, which outweighs the public interest in the doing of justice between the parties by holding a trial of the action.[32]I turn then to the amended defence. It is there admitted (paragraph 1) that the claimant provided information for payment on a number of occasions. It is admitted also (paragraph 2) that the claimant provided information relating to Mirza and his associates; that he, and some of them, were prosecuted and convicted of drugs offences; and that 7 kilos of heroin were seized in the course of police investigations. But otherwise paragraphs 4 and 6 of the amended statement of claim are denied. There is a specific denial that any information or assistance provided by the claimant led to the arrests, prosecutions, or convictions of Mirza and/or others.[33]It seems to me that these matters cannot be litigated consistently with the public interest; and if that is so there is a plain jurisdiction to strike out the claim as embarrassing or abusive, under CPR 3.4. See what is involved. If the disputes which they generate were to be resolved fairly by reference to the relevant evidence - and there is no other legitimate judicial means of proceeding - the court would be required to examine in detail the operational methods of the police as they related to the particular investigation in question; to look into the detailed circumstances of the claimant's discussions with police officers; to conduct a close perusal of such information as the claimant provided, to assess its quality; to compare that information with other relevant information in the hands of the police, very possibly including material coming from or relating to other informers, and so also to assess and contrast the degree of trust reposed by the police in one informer rather than another; and to make judgments about the information's usefulness, and not only the use in fact made of it (and thus, notionally at least, to put itself in the shoes of a competent police force so as to decide what such a force would or should have done). Some of these exercises would, by the standards and practices of ordinary litigation, require the assistance of expert evidence.[34]In short, the very business of trying this claim would transfer the difficult and delicate business of tracking and catching serious professional criminals ("... Zafar Ali Mirza and others planning to supply heroin in large quantities in the UK": amended Statement of Claim, paragraph 4) from the specialist and confidential context of police operations to the glare of the public arena of a court of justice.[35]I recognise at once that it is impossible at this stage to predict precisely the degree to which the issues I have outlined would have to be gone into. Some might figure larger than others. Some might not arise at all - if, for instance, the police made admissions (contrary to their present stance) as to the utility of the claimant's information. If I considered that there was any sensible possibility that the action might be tried without offence to the public interest, I would readily agree with the conclusion arrived at by my Lord Waller LJ (paragraph 26 of his judgment) that the court should not now strike out the case but should ascertain in due course, through the usual interlocutory procedures, whether there is machinery available to enable the questions falling for trial to be adjudicated fairly.[36]But in my judgment there is no such sensible possibility. The pleaded contest arising from the issues joined in the amended statement of claim and the amended defence cannot be resolved without adjudication of some or other or all of the issues to which I have referred; it is upon these issues that the contest wholly depends. And once any such issue were raised, it is to my mind inevitable that the court's duty would be to hold that the public interest in withholding the evidence about it outweighed the countervailing public interest in having the claim litigated on the available relevant evidence. In reality such a position could only be avoided if the police made comprehensive admissions which absolved the court from the duty to enter into any of these issues. But a case which can only be justly tried if one side holds up its hands cannot, in truth, be justly tried at all.[37]But that is not all. In my judgment the very bringing of such a claim as this makes injustice, at least if the claim is disputed in good faith (and we are surely entitled to assume that that is the position here). If it is allowed to proceed at all, an expectation is generated that somehow or other a means may be found to try it consistently with the public interest; the parties are bound to attempt to configure their competing cases so as to get in evidence in the face of the obvious public interest difficulties; at once the very process of litigation, supposed to be even-handed, is gravely distorted. The basis on which either party's case is pleaded (assuming no more than a modest sophistication on the lawyers' part) is subject to pressures which should be irrelevant, and there will be pressures to compromise of a kind which ought not to be brought to bear. All this, in my judgment, tends to compromise the business of doing justice.[38]I do not consider that the decision of this court in Savage [1997] 1 WLR 1061 contains anything to inhibit the conclusion I have reached. The principal question there was whether a police informer should be precluded from revealing his identity as such despite his own willingness to sacrifice his anonymity by bringing an action to recover remuneration from the police: see in particular per Judge LJ at 1067E. No such point is taken in this case. The closest the case comes to the issues which confront us is, I think, in this passage from the judgment of Potter LJ at 1068E-H:
" the judge based his decision in large measure upon his anticipation of the likely outcome of the plaintiff's applications for discovery and interrogatories later in the action. The judge said he could think of nothing more damaging to the police effort than to make material of the sort which would be sought available from police files. He said: 'This may be new law but I must grasp the nettle and rule upon it. A new type of action needs new principles of law or a greater application of old principles. I have not the slightest doubt that it would be very much contrary to the public interest to allow any part of such material into the public domain or into the possession of a police informer and then from him to the criminal fraternity."
Having concluded that discovery would be refused for that reason, he regarded it as an additional ground to strike out the action. There are two points to be made in that respect. First, the fact that difficulties may be encountered on discovery does not itself render an action vexatious or an abuse of process. Secondly it seems to me quite wrong to consider issues of possible privilege in advance and in vacuo rather than on the basis of the particular facts and consequent claims for privilege which are asserted in the light of the issues as crystallised at the discovery stage."[39]This very passage, however, demonstrates that it cannot have been their Lordships' view in Savage that the case could not be tried without injury to the public interest, which is my view of the present case.[40]I repeat: I base my decision solely on the particular content of the pleadings in this action. I do not say there can never be a claim in contract by an informer against a police force to recover agreed remuneration for the delivery of information. But the present claim cannot and should not be litigated.[41]I would allow the appeal and strike out the action.

LORD JUSTICE JONATHAN PARKER:

[42]In support of the appellants' contention that the judge ought to have struck out the action, Mr Perks makes four submissions. First, he submits that the pleaded agreement is incomplete in the sense that the pleaded terms as to payment are so vague as to render the agreement unenforceable. Secondly (a related point) he submits that the court, in attempting to assess what would be reasonable remuneration in accordance with paragraph 2 of the Statement of Claim, would find itself faced with an impossible task. Thirdly, he submits that it is apparent on the face of the Statement of Claim that there can have been no intention to create legal relations by entering into an agreement enforceable at law. Fourthly, he submits that in any event the action ought not to be allowed to proceed since the prosecution of the action would be contrary to public policy.[43]I am unable to accept Mr Perks' first and second submissions. Assuming that the action were to proceed and that the claimant were to succeed in establishing an agreement in the terms pleaded in the Statement of Claim, the court would, as it seems to me, simply have to do its best to reach a just assessment of the remuneration due to the respondent by reference to the various factors pleaded in paragraph 2 of the Statement of Claim. In the nature of things, it must be highly unlikely that the court would be in a position to make that assessment with any degree of precision, but it does not follow that the agreement is thereby rendered unenforceable.[44]Nor can I accept Mr Perks' third submission. The Statement of Claim pleads a binding agreement and seeks relief on that basis. An examination of the relevant evidence might very well lead to the conclusion (as it did in Robinson ) that there was no intention to create legal relations; but in my judgment the court is in no position to reach such a conclusion on a strike-out application.[45]Thus far, therefore, I am in agreement with the judge.[46]I turn, then, to Mr Perks's fourth submission, based on public policy.[47]In cases where reliance is placed on considerations of public policy, various competing interests and considerations may have to be taken into account before a judgment can be made as to where the overall public interest lies. The instant case is such a case, in my judgment. Thus, there is a fundamental public interest in ensuring that justice is done and is seen to be done. Further, and more specifically, there is a public interest in the enforcement of contractual obligations. Equally, however, it is in the public interest that the effectiveness of the law enforcement agencies in investigating and preventing crime should not be adversely affected by an obligation to make public information or material of a sensitive or confidential nature.[48]In the instant case Mr Paul (for the respondent) accepts that a situation may arise at some point in the future where it can be seen that the further prosecution of the action would require the police to make disclosure of material, contrary to the public interest; and that if and when that point is reached the action should proceed no further. However, he submits that that point may never in fact be reached, and that a court on a strike out application should not assume that it will.[49]In my judgment, Mr Paul was right to recognise an overriding public interest in not requiring the police to disclose information or material for the purposes of a civil trial where such disclosure would be contrary to the public interest. It seems to me to follow that if a fair trial of the issues in the case would necessarily involve the disclosure by the authorities of information or material which is sensitive or confidential and the disclosure of which is not in the public interest, and if that in turn means that it would be contrary to the public interest that the trial should take place, then the case should not be allowed to proceed. As soon as it becomes apparent that that is the position, then in my judgment it is open to the court, in the exercise of its inherent jurisdiction, to strike the action out.[50]In the instant case it is in my judgment inevitable on the face of the Statement of Claim that a fair trial of the issues there raised will necessarily involve the disclosure of information and material by the police, the disclosure of which is not in the public interest. Thus, paragraph 2 of the Statement of Claim pleads that it was an implied term of the alleged agreement that in determining the amount to be paid to the claimant the following factors should be taken into account:
"..... the seriousness of the criminal activity to which his information and assistance related; the financial rewards likely to accrue to criminals from the relevant criminal activity; the value to the police of his information and assistance; and the personal danger to which the Plaintiff and his family would be exposed as a result of his providing information and assistance as aforesaid."
[51]In my judgment in taking account of the second and third of those factors (and possibly also the first) the court's investigation will inevitably cover sensitive areas which should, in the public interest, remain confidential to the police. In such circumstances, it would in my judgment be contrary to the public interest that a trial of the action should take place.[52]Nor can I accept Mr Paul's submission that matters should be allowed to proceed at least to the stage of a preliminary issue (as they were allowed to do in Savage ), in order to see whether the claimant can establish the agreement which he pleads. In my judgment where (as here) it is apparent on the face of the Statement of Claim that the resolution of the pleaded issues will necessarily involve disclosure contrary to the public interest, it would be pointless to allow the action to proceed to the hearing of a preliminary issue since the effect of doing so would (if I am right) merely delay the moment at which the action comes to a premature end.[53]In Savage , the pleaded agreement was in significantly different terms to that which is pleaded in the instant case. In Savage the agreement as pleaded provided that payment would be calculated on the basis of 10 per cent of the value of any property recovered, less any insurance reward, but if payment could not be calculated in that way then a reasonable sum would be payable. It was possible, therefore, that payment could be calculated on a basis which would not involve disclosure of any sensitive or confidential material. That, however, is not the position in the instant case, given the terms of paragraph 2 of the Statement of Claim (quoted above).[54]For those reasons, and in agreement with Laws LJ (whose judgment I have had the advantage of reading in draft, and with whose reasoning and conclusions I am in full agreement), I would allow this appeal and strike out the action.

ORDER

Appeal allowed with costs here and below; detailed assessment of costs and determination of whether the claimant should pay any part thereof adjourned to the district judge; detailed public funded costs assessment of the claimant's costs here and below; permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)

Cited in 37 later judgments

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