Marsh v Chief Constable of Lancashire Constabulary [2003] EWCA Civ 284

Case No B1/2002/1948

[2003] EWCA Civ 284

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(POOLE J)

Venue Royal Courts of Justice

Date Thursday 6 March 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE POTTER

LORD JUSTICE MUMMERY

LORD JUSTICE CHADWICK

Between

MARSHAppellant

PAULINE CLARE (CHIEF CONSTABLE OF LANCASHIRE CONSTABULARY)Respondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

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Official Shorthand Writers to the Court)

Mr Timothy Holroyde QC and Mr Kevin Slack (instructed by Forbes) for appellant

Mr Geoffrey Tattersall QC (instructed by Lancashire County Council) for respondent

Judgment

As Approved by the Court

Introduction

[1]This is an appeal from the judgment and order of the Honourable Mr Justice Poole dated 6 September 2002 by which he upheld the decision of a circuit judge, His Honour Judge MacKay in the Liverpool County Court dated 22 January 2002 whereby, on an application made by the defendant pursuant to CPR 3.4(2)(a) and CPR 24.2(a)(i), he ordered that the claimant’s claim be struck out. At the beginning of his judgment, Judge Mackay described this as “an unusual and bizarre case”. He was indeed correct. The claim for damages arises almost entirely out of the claimant’s corrupt relationship with a detective constable in the Lancashire Police for whose actions the defendant is alleged to be vicariously liable.

[2]As already indicated, the application was made upon two bases, namely under CPR 3.4(2)(a) and CPR 24.2(a)(i). For the purposes of the former rule the court is obliged to treat the facts averred in the claim as true, notwithstanding that the difficulties of proof may be obvious: see Swinney v Chief Constable of Northumbria Police

[1996] 3 ALL ER 449

. However, so far as the latter rule is concerned, the question is whether upon the material before the court the claimant has any real prospect of succeeding in his claim: see Kent v Griffiths

[2000] 2 WLR 1158

at 1169 E-F. On the appeal to Poole J, it was a ground of appeal that the judgment of Judge MacKay was based upon non-acceptance of the correctness of some of the pleaded averments on behalf of the claimant, and in particular on the judge’s view that the claimant must have known that, in relation to the matters alleged he was acting unlawfully and in the course of a corrupt relationship with DC Hoban. However, before this court, Mr Holroyde QC for the claimant has accepted that the real question is whether on the material before him the judge was right to take the view that the claimant had no real prospect of success. He accepts, in the words of Poole J, that:

“The success or failure of such applications as this must necessarily hang upon a detailed consideration of the undisputed facts peculiar to the case; and if, following such consideration, it is the judge’s conclusion that no reasonable or responsible Tribunal of fact properly directing itself could regard the claim as factually sustainable, then it is … his duty to order the claim to be struck out.”

The Facts

[3]The facts as pleaded in the Amended Particulars of Claim and the claimant’s replies to the defendant’s Request for Further Information dated 16 May 2001 are as follows.

[4]In January 1996 the claimant, who was a motor dealer, entered into a business relationship with one John Fury whereby both shared the claimant’s premises for the purposes of motor trading. In July 1996 that business relationship was dissolved, following which Fury occupied the claimant’s garage premises, retained motor vehicles belonging to the claimant and refused to release them. Fury assaulted the claimant on 1 July and was arrested and charged as a result. However, he was released on bail and resumed possession of the garage where the vehicles were kept, intimidating the claimant and chasing him away. Fury later pleaded guilty to the criminal offence of assault for which he had been arrested. Following the incident with Fury, the claimant met DC Hoban who was at Chorley Police Station. On 4 July 1996, Hoban and the claimant had a meeting at a public house in which Hoban offered to assist the claimant by visiting Fury at the claimant’s premises and attempting to persuade him to relinquish the premises and the claimant’s goods. The next day the claimant was contacted by Hoban and told to meet him in a car park where Hoban told him that he had permission from a senior officer to act as a regional crime squad officer and to approach Fury in that capacity to warn him off. However, the attempt failed. On 7 July 1996 Hoban invited the claimant to become a registered informant and to work with another informer called Newsham in buying stolen vehicles which would be recovered by the police and the claimant would receive a reward from the insurers of the owners of the vehicles equivalent to 20% of their value. In a witness statement of the claimant which was before the judge (see further below), the claimant made clear that Hoban told him “It was possible that if I was busted with other people I would have to go along with it and be arrested and he would sort it out once I was at the police station and get me part iv bailed, which I understood to mean everything would be forgotten. He told me that it would be alright to return home as he would fit me a police panic alarm in the house.” The claimant went to Chorley Police Station and in the presence of other officers filled in informant forms so as to become a registered informant. He was given a code name and Hoban came to his house and installed a panic button.

[5]On 8 July 1996 Hoban told the claimant that he could join a police informant witness protection programme known as ‘The Club’ and that, if he did so, the claimant would be afforded protection from Fury and authorised to purchase and sell stolen vehicles. In order to join the Club he would have to pay to Hoban the sum of £10,000, which the claimant subsequently did by a series of transactions. These transactions were stated in the Further Information supplied by the claimant to have taken place ‘in July 1996’. However, there was before the court a 38-page witness statement of the claimant dated 9 December 1996 (see further below) which makes clear that payment by several instalments extended well into August 1996, the last instalment being constituted by the transfer to Hoban’s parents-in-law of a stolen red Landrover Discovery recently bought by the claimant as a stolen vehicle for £1200 or £1500 and which, at the suggestion of the claimant, was valued at £3,500 and treated as the final payment due to Hoban under the claimant’s agreement to pay £10,000 for admission to the Club.

[6]In October 1996, at a time when, as is clear from his witness statement, the claimant was dealing in stolen cars under the Club arrangement and was in regular touch with Hoban in this respect, the claimant was arrested at home by two other police officers from Chorley, who searched his premises for stolen vehicles in reliance upon a search warrant and found stolen cars in his garage. The claimant told them he was an informant working with Hoban and that Hoban had advised him to buy the cars. It is alleged that the arresting officers knew the claimant was a registered informant but not that they were aware of the existence of the Club or its workings. Following his arrest the claimant was taken to Chorley Police Station where he asked to see Hoban but was told that Hoban had been told he could not see him. The claimant sent for his solicitor to whom he told what had been going on between Hoban and himself and he was interviewed at length by the police. He was then released on bail. His detention appears to have lasted between about 10.30am and 6.30pm.

[7]Following the claimant’s release, he met Hoban who blamed another officer (Sgt Graham Harrison) for what had happened. When the claimant told Hoban he would see the officer and tell him about the money he had paid to the club, Hoban put his head in his hands and said “Don’t do that”. He later admitted that he had had all the money which the claimant had paid over, using it to solve his (Hoban’s) own personal financial problems. On 26 October 1996, the claimant went to the Blackburn Police where he gave an account of his dealings with Hoban and had no contact with him thereafter. After a lengthy investigation, Hoban was prosecuted for offences of corruption in respect of which the chief prosecution witness was to be the appellant on the basis of his witness statement to which I have referred. However, the indictment was stayed, partly because of Hoban’s ill health and partly on the grounds of abuse of process.

The Pleaded Claim

[8]Returning to the pleadings, by the Amended Particulars of Claim (“APOC”) the claim for damages is put under the following heads: i) General damages for Wrongful Arrest and False Imprisonment of the claimant for handling stolen cars. It is pleaded that the claimant’s arrest and 8-hour period of detention were either unlawful from the start or became unlawful by reason of ‘delay in verifying the claimant’s account of himself’. ii) General Damages for(1) Negligence and

(2) Misfeasance in Public Office by Hoban for which the defendant is said to be vicariously liable. In relation to the claim for misfeasance, exemplary and/or aggravated damages are claimed. iii) In respect of the claims for negligence and misfeasance, the Special Damage is quantified in paragraph 17 of APOC as follows: a) £10,000 paid to Hoban in cash or assets (the assets being the Landrover Discovery valued at £3,500 for that purpose). b) £50,000 in respect of the motor vehicles said to have been ‘owned’ by the claimant and removed by the police at the time of his arrest on 23 October 1996 and thereafter not returned. It is to be noted, however, that in the witness statement such vehicles are asserted or admitted to have been stolen vehicles. c) £156,000, said to be the value of the monies or assets owed to the claimant by Fury ‘on dissolution of the partnership’ between them which monies or assets it is said the claimant has been unable to recover due to the actions of Hoban and/or other officers in failing properly to investigate the activities of Fury.

[9]The claim for negligence is predicated on the basis of the existence of a ‘special relationship’ between the claimant and Hoban, who it is said was at all times acting as a servant or agent of the defendant. In paragraph 8 of APOC, it is pleaded that the special relationship was formed as a result of the following: i) Hoban offered to assist by visiting Fury who was in occupation of the Claimant’s premises and in possession of his property. He pretended to be an officer of the Regional Crime Squad (which he was not) and purported to attempt to persuade Fury to relinquish the premises and goods. This attempt failed. ii) Hoban issued the Claimant with his stun gun to protect himself against further attacks and installed a trigger alarm at the Claimant’s home. iii) Hoban invited the Claimant to become a participating informer and to recover his losses by dealing in stolen vehicles as set out in paragraphs 9-12 below. iv) Hoban extracted the sum of £10,000 from the Claimant in the circumstances set out below. v) Hoban recovered a quantity of VIN plates belonging to Fury from the Claimant’s garage and advised the Claimant to use these in the continuance of his future car dealings.

[10]So far as misfeasance in public office is concerned it is put on two bases, first against Hoban on the basis of “accepting sums of money and/or assets from the claimant in respect of ‘The Club’ ” when he had no authority to do so (see para 16 APOC).

[11]There are also allegations of negligence and misfeasance made generally against ‘Hoban and/or other officers’ in the defendants employment which are particularised as follows: (para 17(a) of APOC). i) Releasing Fury on bail after his arrest for assault when he was known to be a violent criminal, known to the police for his habit of taking over legitimate business by force, confiscating the assets and terrorising the owners. ii) Failing to warn the claimant that Fury was about to be released on bail. iii) Failing to detain Fury for long enough to enable the claimant to remove his property from the garage and safeguard his assets and belongings. iv) Failing to re-arrest Fury for breach of his bail conditions. It is the claimant’s case in this respect that when he was back at the garage premises on 1 July in order to safeguard his belongings, Fury approached him and chased him from the premises; however no further action was taken by the police in this respect. v) Failing to take any action in relation to the sale by Fury of the claimant’s assets and in particular his motor vehicles of the claimant which were thereby stolen. It is complained that the police did not treat this as a crime, but as merely a civil matter. vi) In connection with the above, it is said that the reason for the failure of the police to take action against Fury was because he was known to the police for having given evidence for the prosecution in a criminal case and was regarded as a protected witness. The APOC assert that “It is also believed that Fury was a police informer” and that, for those reasons, the police were unwilling to take action against him.

The Judgment of Poole J

[12]The grounds on which both Judge MacKay and Poole J decided as they did, can be summarised in this way.

[13]Wrongful Arrest/False Imprisonment It was not in dispute that two officers, acting independently of Hoban arrested the claimant on the grounds that he was in possession of two stolen vehicles which he knew to be stolen. Such facts plainly justified an arrest on reasonable suspicion that the arrestable offence of handling stolen cars had been committed by the claimant. The fact that, later, having revealed his dealings with Hoban, the matter was not proceeded with could not render the arrest invalid. Further, it could not be said in the circumstances that the time spent at the station in interviewing the defendant and securing his explanations before his release upon bail was unreasonably long.

[14]Negligence The complaint of negligence related to the failure of the police properly to investigate the actions of Fury and to prevent him from stealing and/or disposing of the ‘monies and/or assets’ owed to the claimant at the time of the dissolution of the partnership (put at £156,000) which the claimant had been unable to recover due to the actions of the police in failing to investigate Fury’s activities. In this respect the judge observed that it was settled law that the police do not owe a private law duty to members of the public to investigate any crime properly or at all: see Hill v Chief Constable of West Yorkshire

[1989] 1 AC 53

, at least unless a ‘special relationship’ could be established in order to satisfy both the ‘proximity test’ and the ‘public policy test’: see Caparo v Dickman

[1990] 2 AC 605

and Dorset Yacht v Home Office

[1970] AC 1004

. In that respect the matters pleaded in paragraph 8 of the APOC (see paragraph 9 above) were inapposite to create or constitute such a special relationship. In relation to the particulars of negligence relied on as a breach of duty, the allegations of negligence relating to bail were irrelevant in respect of an allegation of failure to investigate the claim properly. The decision as to the grant of bail, or as to whether or not to arrest a person for breach of his bail conditions, are similarly not apt to create a private law duty and the discretion as to whether or not to arrest Fury could only be challenged by way of judicial review proceedings.

[15]Misfeasance in Public Office As already made clear, there were two aspects to this allegation. The first was alleged to be that of Hoban in accepting sums of money and/or assets from the Claimant in respect of ‘The Club’ when he had no authority to do so. The second was the general matters relied on against the police at large which were a repetition of the Particulars of Negligence in support of the ‘monies/assets’ claim (see paragraph 11 above). As to the first, the defence admitted, and the judge accepted, that the request for payment by Hoban was unlawful and that, in seeking and accepting the payment of £10,000, it was arguable that he was personally guilty of misfeasance in a public office as defined in Three Rivers District Council & others v Bank of England (No.3) [2000] 3 All E R 1. However, in this respect the judge found that it was plain on the evidence that Hoban was acting outside the scope of his duties, there being no ‘close connection’ between the tort of Hoban and his employment, of the kind required to establish vicarious liability on the test laid down in Lister v Hesley Hall [2001] 2 All E R 769. This was a case where Hoban’s employment provided the opportunity for him to commit his wrongdoing; it was not a method of carrying out his ordinary police duties but rather a separate and independent activity by which he sought to benefit himself.

[16]Furthermore, in respect of the £10,000 claimed as having been paid to Hoban and the £50,000 claimed in respect of motor vehicles removed by the police on 23 October 1996, the maxim ‘ex turpi causa non oritur actio’ plainly applied. The appellant had to rely on his own illegal payment for a corrupt purpose in order to seek to recover the sum of £10,000 paid to Hoban, and it would have been an affront to the public conscience for the police to be liable to compensate a man who had paid monies to a police officer as part of a corrupt relationship. So far as the £50,000 claim was concerned, the claimant admitted having acquired the relevant vehicles for resale knowing they were stolen and he would have to rely upon his own illegal acts to justify his right to possess or retain them or found his claim for damages in respect of their removal.

[17]As to the general allegations of misfeasance, their nature simply did not satisfy the required combination of deliberate wrongdoing and ‘malice’ as the judge put it, which were stated to be required in the Three Rivers Case per Lord Steyn at p.8e-f and per Lord Hutton at 41h – 42d. The judge observed that if there was no duty to investigate a crime, the failure to do so could not constitute deliberate wrongdoing or malice. In any event, the only allegation of bad faith made in the pleadings was on the part of Hoban. This head of claim was therefore also doomed to failure.

[18]The judgment of Poole J runs to some 32 pages in which he rehearsed and considered every one of the rival submissions of the parties before stating his conclusions on each, to which I have by no means comprehensively referred. However, because of the principle ground of criticism advanced before us by Mr Holroyde QC for the claimant I shall quote the final sentences of the judge’s conclusions. He said:

“I return finally to what His Honour Judge MacKay described, rightly, as his fundamental finding, namely that the actions of DC Hoban were not a wrong way of carrying out his duties, but wholly separate and independent activity for his own profit in which, far from performing his duties as a police officer, he took the opportunity of his position to commit crime, and that the appellant, told he could deal in stolen cars, knew perfectly well that this was wrong and unlawful and that Hoban was dishonest, and that what he (the appellant) was wrong. In my judgment this finding, from which all else follows, cannot on the undisputed facts of this case, be impeached. Indeed, I adopt it. Mr Holroyde’s core argument is that to do so is to beg the very question that can only be resolved at trial and on a detailed examination of evidence of witnesses. I do not agree. There are cases, and in my judgment this is one of them, where on examination of the undisputed evidence, it can properly be determined that no reasonable tribunal of fact can reach any other conclusion than that a claim is factually unsustainable. In these circumstances, it is the court’s duty to strike the claim out.”

The Grounds of Appeal

[19]This is of course a second appeal in relation to which this court is reluctant to interfere in the absence of obvious error on the part of the judge. In this respect, Mr Holroyde launches an attack upon the judgment on two broad fronts. His first line of attack is that the passage I have just quoted represents a fundamental error of approach by the judge in deciding that the claimant’s pleaded case was factually incorrect without a trial of the issues raised. He says that, by holding as he did, Poole J made findings of fact he was not entitled to make. Second he submits that the judge made a mistaken application of the ex turpi causa principle. As to the first submission, Mr Holroyde submits that the essence of the claimant’s allegations is that he believed his position to be that of a participating informer assisting the police in the investigation of serious criminals and that he was acting on the instructions of DC Hoban (with the knowledge of other officers) in buying and selling stolen vehicles (which would be recovered by the police) and would receive a reward from insurance companies.

[20]That being the essence of the case, Mr Holroyde submits that, in adopting the fundamental finding of Judge MacKay set out by the judge, he based himself on two affirmative findings of fact which were the opposite of the pleaded allegations in that i) He found that Hoban was acting independently and for his own profit rather than simply adopting a wrong method of performing his duties as a police officer and ii) that the claimant was doing what he knew to be wrong and unlawful.

[21]Consequently, submits Mr Holroyde, the judge was in error in two respects. First, he did not decide that the claim was unsustainable on the basis that the pleaded case was factually correct, but did so on the basis that it was factually incorrect. Secondly, he was in any event not justified in adopting the findings of Judge MacKay and, in doing so, deprived the claimant of a fair trial.

[22]As to the first alleged error, the position seems to me to be as follows. Mr Holroyde, as already indicated, accepted that whatever the test to be applied under CPR 34(2)(a), the position under CPR 24.2(a)(i) is different, and if it be that, on the material before the judge (which in this case includes the lengthy witness statement to which I have referred) it is apparent that the claim has no real prospect of success, then the claim may be struck out. It is plainly upon that latter basis that both Judge MacKay and Poole J reached the decisions which they did. As to the second point, it seems to me, on examination of the pleadings in the light of the claimant’s witness statement, that there was ample material to justify the judge in coming to the conclusion which he did.

[23]So far as the finding that Hoban was acting independently is concerned, the position is as follows. It is integral to the allegations of the claimant against the police as pleaded in the APOC that the claimant was to pay, and did pay, Hoban £10,000 for the privilege of becoming a member of the Club in return for the benefits it would confer of protection from Fury and ‘authorisation’ to deal freely in stolen vehicles. This was plainly a corrupt relationship, if only because the police are not in the business of supplying paid protection to members of the public and the practice of employing police informants involves rewards paid to those informants by the police for information, not payment by a would-be informant in order to buy the privileges of protection and a licence to commit crime. It was also a system which it was clear to the claimant was operating corruptly within the police force rather than as part of ordinary police operations. In recounting the relationship in his witness statement, the claimant said inter alia as follows:

“It wasn’t a great surprise when money was mentioned because I didn’t think I had done anything to justify P.I. status the way Tony had described it, in that I didn’t think I could provide the amount of information to justify all these privileges, so I was having to pay the money to gain the status. Tony also told me only to go through him. He told me never to trust uniform or his Sergeant Graham Harrison who would do anything for a good job and would even arrest me and compromise my position as an informant. He told me that only a few people at Chorley were in the Club, all of which were higher up than him. This was the Club that I could gain entrance to by paying my £10,000. I really believed that this Club existed, by seeing people who I believed were in a similar Club getting away with all sorts. He told me to back off FURY as he was being looked after by the police because he had put his brother away for 10 years, so I was told to back off and go and earn the money he owed me. I wasn’t happy with this and told Tony so. He still said to leave it and in 12 months they would set him up with drugs. He said it would be easy to find things in his property etc. I still wasn’t happy, so Tony told me to go and see a solicitor in Blackburn called [T]. He said he was a player, a member of this Club, but I hadn’t to let on to anyone that I was a member. It was a bit like a Masonic Club. He told me to see [T] and tell him that I had been sent by him and that I was working for Tony HOBAN and that I was one of his boys. I went to see [T] and told him all the problems I was having with FURY. After the incident at my house with FURY he had been charged with a minor offence. A few days after my meeting with [T] Tony told me that the charges against FURY had been upped to a more serious charge. I firmly believed this was due to the influence of this Club and living proof that the Club existed and worked as Neil and Tony had said. Some time that week, I think towards the end, I made my first payment to join the Club.”

[24]Finally, in the light of Hoban’s admission to the claimant in October 1996 that Hoban used the money paid to him to solve his own personal problems, it seems plain that the suggestion that Hoban was acting other than corruptly for his own benefit is doomed to failure.

[25]Mr Holroyde has pressed upon us the point that, on what the claimant was told by Hoban, the Club appears to have gone higher than Hoban to a Detective Inspector Legge from whom Hoban said he had to get clearance and in respect of whom there is a single line assertion in the Further Information supplied that “also Detective Inspector Legge discussed ‘The Club’/System with the claimant”. That bald assertion of course begs the question as to what was discussed. However, put at its highest, the fact that a more senior officer may have participated in the Club scheme does not go to its legality or amount to an allegation that it was other than a ‘rogue’ cell including others than Hoban in its corrupt activities.

[26]However the matter may be put in the pleadings, it seems to me quite hopeless to contend that the claimant did not know that what he was doing was wrong and unlawful. There is no assertion or suggestion throughout, and indeed such suggestion would be absurd, that the claimant did not know that he was dealing in stolen cars, and thereby committing criminal offences, with or without police encouragement, or that the claimant believed that he was paying over the sum of £10,000 for any lawful purpose. It is plain from his statement that he was bargaining upon the fact that, because he was acting with the encouragement of Hoban and as part of the Club scheme into which he was buying, he would in practice be immune from arrest or prosecution. That being so, the defendant relies squarely upon the defence of illegality as disentitling the claimant to recover in respect of both the claim for £10,000 and £50,000 in respect of stolen vehicles seized by the police at the time of the claimant’s arrest.

[27]In its Consultation Paper No. 160 published in 2001, the Law Commission in attempting to state the principles governing the defence of illegality (ex turpi causa), analysed the position as follows. A claim in tort will fail on any of three grounds:

“(1) Where the claimant seeks, or is forced to found the claim on his or her own illegal acts: (2) Where the grant of relief to the claimant would enable him or her to benefit from his or her criminal conduct (or where what is sought is compensation for loss of liberty or an indemnity for the consequences of criminal behaviour); and (3) Where, even though neither (1) or (2) is applicable to the claim, the situation is nevertheless covered by a general residual principle that the court should not assist a claimant who has been guilty of illegal conduct of which the courts should take notice.”

[28]The paper goes on to state that, because of the wide variety of factual situations in which illegal conduct must arise, the general residual principle in (3), and possibly grounds (1) and (2), may be subject to certain limiting factors, in particular (i) the closeness of the causal link between the claim and the illegal act or purpose relied on (“Where the plaintiff’s action in truth arises directly ex turpi causa, he is likely to fail … [where] the plaintiff has suffered a genuine wrong, to which the unlawful conduct is incidental, he is likely to succeed” per Bingham LJ in Saunders v Edwards

[1987] 1 WLR 1116

at 1134); (ii) the seriousness of the illegality; (iii) the proportionality of the loss to the illegality, the possible disproportion referred to being that between the claimant’s conduct and the seriousness of the loss he or she will incur if the claim is disallowed.

[29]For the purposes of considering the instant case, I am content to adopt that summary, because it does not seem to me that, if and in so far as it requires any fine tuning, such a process would make any difference to the result in this case.

[30]I take first the claim for £10,000 damages in respect of the claimant’s Club joining fee. Such claim seems to me to fall squarely within ground 1 (above). The claim is to recover a corrupt payment paid to a police officer for the purpose of joining a scheme under which the claimant would be authorised to trade in stolen vehicles for profit. Whether such profit was to be made by way of resale or by the claiming of a reward from insurers seems to me immaterial. Both the knowing participation in corruption and the intended handling of the stolen cars were serious criminal acts. It seems to me that they are plainly of a character which falls within the principle stated by Cresswell J in Standard Chartered Bank v Pakistan National Shipping Corporation and Others (No.2)

[1998] 1 Lloyds Rep 684

at 705-6 and approved on appeal by this court at

[2000] 1 Lloyds Rep 227

“Whatever theory founds a defence of ex turpi, the defendant must establish (a) that the plaintiff’s conduct is so clearly reprehensible as to justify its condemnation by the Court and (b) that the conduct is so much part of the claim against the defendant … as to justify refusing any remedy to the plaintiff.”

[31]Turning to the claim for £50,000, it appears to me to fall clearly within ground 2 (above). It must be noted that upon this appeal, Mr Holroyde acknowledged that a claim for damages based on the valuation of vehicles seized by the police to which, on the basis that they were stolen, the claimant had no right of ownership or possession, is not sustainable. He accepted that, if the claimant had a claim, it had to be limited to the monies which the claimant had expended in acquiring the stolen vehicles pursuant to the arrangement with Hoban, (which lesser sum he was unable to quantify). That is plainly correct. However, it does not seem to me that, put on that basis, the claimant should be entitled to recover in respect of the purchase price of stolen goods acquired in the pursuance of a corrupt scheme in which the claimant was participating at the time.

[32]In the course of his tenacious submissions, Mr Holroyde accepted that, in respect of the claims for £10,000 and £50,000 it came down to this. The claimant’s overall position was that he was a victim of Hoban, duped into believing that what he was doing was lawful, being part of a lawfully authorised police scheme as opposed to being a participant in the Club aware of the irregularity of its activities but keen to participate in them. Mr Holroyde accepted that if, on the material before him, the judge was properly satisfied that the latter was the position, and that at trial no reasonable tribunal could hold the contrary, then the defence of ex turpi causa was bound to succeed. However, Mr Holroyde submitted that, on the pleadings and the matter contained in the witness statement, it was not proper for the judge to reach that conclusion and that the claim should be permitted to proceed to trial.

[33]The practical difficulty which Mr Holroyde faced in this submission was that, when asked by the court to articulate for what lawful reason the claimant could have thought that he was being asked to pay over a Club joining fee of £10,000, he was at a loss to suggest one. He was also unable to point to any assertion in the pleading or in the claimant’s 38-page statement where the claimant asserts his belief in the lawfulness of the Club arrangement. The best he could do was rely upon the closing paragraphs of that statement as follows:

“I realise now that I have been well and truly conned by Tony HOBAN and that everything he told me was lies. He found me when I was having the greatest problem in my life with John FURY and was getting no joy from anyone. Tony said he would sort it and, on the face of it, it looked like he had. If I had not got involved with Tony HOBAN working with P.I. status, I would never have got involved with the stolen vehicles I have described in this statement. I have never been in trouble with the police in regard to stolen vehicles before … I realise that Tony HOBAN took advantage of me at the two lowest points in my life. He got me involved when I was having the problems with FURY and had had to move house and he kept pushing and pushing me for the Discovery whilst my father was dying … … he practised his deception upon me using his position as a Detective Constable in the Lancashire Constabulary to convince me of his bone (sic) fide.”

[34]In my view, rather than assisting the claimant in relation to the plea of ex turpi causa, these paragraphs amount to an acknowledgment of illegal activity coupled with an explanation as to why, at the time, the claimant was willing to become involved. In context it seems clear that the reference in the final paragraph of the quotation to deception by Hoban is a reference to deception in respect of the protection which he was told the Club would offer (see the quotation in paragraph 23 above). As already indicated, I consider that Poole J was right in the decision to which he came in respect of the claims for £10,000 and £50,000.

[35]In the light of the clear view which I have formed in relation to the question of illegality in respect of those two sums, it becomes unnecessary to consider whether, if the claimant did indeed have a lawful claim in respect of Hoban’s misfeasance in public office, the defendant could nonetheless avoid vicarious liability for Hoban’s tort on the basis of the test propounded in Lister v Hesley Hall. Poole J felt able to form a clear view upon the matter. There is plainly an argument that he was wrong to do so at a summary stage, at least without the benefit of discovery in relation to the procedures and directions in force at the relevant time which governed the handling of informants by detectives attached to Chorley Police Station. However, it is not necessary so to decide for the purposes of this appeal.

[36]I turn now to the claim for general damages for wrongful arrest and false imprisonment. In my view, the claim for wrongful arrest is plainly unsustainable. The claimant was arrested, both on a warrant in respect of non-payment of council tax and for being in possession of stolen vehicles which he admitted he knew to be stolen. Leaving the former aside, the arresting officers plainly had reasonable grounds for suspecting that an arrestable offence had been committed and there are no grounds upon which the validity of the arrest could be challenged.

[37]The claim therefore depends upon the assertion that the claimant was detained for an unreasonably long period of time at the police station while matters were subsequently investigated and a decision made whether or not to charge him in respect of his suspected handling. In this respect he was protesting and seeking to rely on the circumstances of his relationship with Hoban as justifying his release. He also asked to see and did see, no doubt at some length, the solicitor T who practised in Blackburn. Further, in the course of their enquiries, the police were required to interview the claimant on two occasions. Although the claimant was claiming to have the permission of Hoban to act unlawfully, the police could not be expected to take his assertions at face value; before releasing the claimant, it would have been necessary to make checks upon the claimant’s version of events and to consider the murky aspects of his dealings with Hoban. The length of a detention after a legitimate arrest depends upon the decision of the custody officer, who must be accorded latitude in the exercise of his discretion: see Wilding v Chief Constable of Lancashire (CA) CCRTF 93/1792/C, 22 May 1995. In the overall circumstances of this case, there is no basis other than bare assertion, unsupported by the facts (and in this respect Mr Holroyde made no submissions), to support a claim that the detention of the claimant for almost 8 hours after his lawful arrest was unjustified. I too would strike out the claim for wrongful arrest and false imprisonment.

[38]I now turn to in consider the claim in negligence for £156,000 said to be the value of the monies or assets owed to the claimant by Fury and which it is said the claimant has been unable to recover due to the failure of Hoban and other officers properly to investigate or control the activities of Fury. As Mr Holroyde made clear to us, the special relationship asserted is that founded on Hoban’s offer, and the claimant’s acceptance, of membership of the Club, which in effect offered him special protection by reason of such membership in relation to the activities of Fury. Again, this basis of claim seems to me unsustainable. Mr Holroyde’s acceptance of the necessity to demonstrate a special relationship arises from his recognition that, in ordinary circumstances, the police do not owe a private law duty in relation to the investigation and suppression of crime: see Hill v Chief Constable of West Yorkshire see also Costello v Chief Constable of Northumbria Police

[1999] 1 All ER 550

in which May LJ stated at 563f-g:

“For public policy reasons, the police are under no general duty of care to members of the public for their activities in the investigation and suppression of crime (Hills’ case). But this is not an absolute blanket immunity and circumstances may exceptionally arise when the police assume a responsibility, giving rise to a duty of care to a particular member of the public (Hill’s case, Swinney’s case [sc. [1997] QB 465]). The public policy considerations which prevailed in Hill’s case may not always be the only relevant public policy consideration (Swinney’s case).”

Here the allegation is that Fury had seized and stolen the ‘business assets’ of the claimant which he was then unable to recover.

[39]By way of preliminary it may be observed that the nature of the business assets is uncertain. They were described in the original Particulars of Claim as partnership assets but, on amendment of the Particulars of Claim they were described as ‘assets in the form of motor vehicles owned by the claimant’ which Fury refused to release. In further information supplied in answer to the defendant’s request dated 16 May 2001, it is asserted that Fury retained approximately 25-30 vehicles the total value of which is estimated at around £100,000. It is said that the request for details of type, value and ownership cannot be answered with any more particularity, as Fury retained the paperwork which would assist the claimant in identifying the vehicles and estimating their value. It is said that Fury began to sell the claimant’s vehicles on or about 2 July 1996.

[40]While it is clear that a complaint was made to the police of assault by Fury on 1 July 1996 it is not asserted that there was ever a formal complaint of theft in relation to the cars taken. It is also clear that the claimant himself saw the seizure and sale of any business assets as a civil dispute, taking his own legal advice and considering obtaining an injunction against Fury. The basis of the complaint of failure to investigate appears to rest upon Hoban’s personal offer to assist: (see sub-paragraph (i) of paragraph 9 above). Sub-paragraph (ii), the issue of the stun gun for the purposes of protection, takes the matter no further forward. Sub-paragraphs (iii)-(v) relate to the Club scheme.

[41]Even if one leaves aside the unlawfulness of the scheme, it does not seem to me that the retention of a person in the role of an informant can ipso facto create a personal duty of care to investigate the actions of his former business associate where no duty would otherwise exist. However, the decisive factor in the case seems to me to be the manifest unlawfulness of the offer and scheme whereby ‘the special relationship’ is said to have been created. In the ordinary way, in a ‘strike-out case’ in which it is alleged that on the facts pleaded the claimant cannot demonstrate the existence of a duty of care, the argument largely centres round the question whether, upon those facts and the nature of the relationship between claimant and defendant, it is ‘fair, just and reasonable’ to impose liability i.e. the third element in the tripartite test in Caparo Industries v Dickman

[1990] 2 AC 605

, per Lord Bridge of Harwich at 616, in relation to which considerations of policy are inevitably involved. In many cases, this question, and the overall need to investigate the interlocking or overlapping nature of all three elements in that test (see Caparo per Lord Oliver at 663), render striking out at the summary stage an unsuitable and unfair means of disposition: see Barrett v Enfield London Borough Council

[1999] 3 WLR 79

at 83. However, in other cases where, on a combined application under CPR 3.4 and 24.2, the essential facts are available in some detail, the answer will be clear. This is such a case. In my view there are simply no factors present which make it fair, just and reasonable to impose a duty of care upon the defendant in respect of the claimant’s property stolen or removed by Fury as pleaded. I consider that the judge was plainly right to reject the plea that any duty of care was created in relation to the preservation of the property of the claimant.

[42]I now turn to matters separately contained within the Particulars of Negligence/Misfeasance in Public Office pleaded at paragraph 17(a) of APOC as founding the claim for £156,000, as set out in paragraph 11 above.

[43]Dealing with the aspect of Negligence first, sub-paragraph (v) again appears to rest upon the alleged duty to investigate, with which I have already dealt above. However, paragraphs (i) (iii) – (iv) appear to rest on the proposition that a duty of care is owed by the police towards a member of the public who may foreseeably be affected by the exercise of police powers in relation to the granting of bail in connection with pending criminal charges and/or with any decision to arrest for breach of bail conditions. Again, the particular duty in this case is said to be owed in respect of the safety and/or recoverability of the property of such a member of the public. In my view, no such duty exists. The extent of a custody officer’s duty and the considerations to which he should have regard in deciding whether or not to order the release of the person arrested for an offence are set out in s.38(1) of the Police and Criminal Evidence Act 1984, sub-section (2A) of which provides that the considerations to which he will have regard are those to which a court is required to have regard in taking the corresponding decisions under paragraph 2 of Part 1 of Schedule 1 to the Bail Act 1976. These provisions give rise to statutory powers and public duties in relation to which a balance is to be struck by the custody officer between the rights of the detained person and the protection of the public along lines specifically laid down in the relevant statutory provisions. They are not of a nature which gives rise to a personal action for breach of common law duty at the suit of a member of the public thereby affected. Once again, the only basis upon which the pleading seeks to establish such liability is by the particulars of special relationship set out in paragraph 8 of APOC which are inadequate for the purpose.

[44]Turning to the aspect of Misfeasance in Public Office, the judge’s finding in respect of the particulars pleaded was a simple acceptance of the submission for the defendant that(a) Misfeasance in Public Office requires deliberate wrongdoing/malice: see the Three Rivers case;

(b) if there is no duty to investigate a crime, the failure to do so cannot constitute deliberate wrongdoing or malice; and

[45]So far as (a) is concerned, it is necessary and sufficient for the purposes of this judgment to expand upon the ingredients of the tort to the extent of quotation from the headnote to the decision of the House of Lords in the Three Rivers case as set out at

[2000] 2 WLR 1220

, which appears accurately to encapsulate the conclusion of their lordships in that case:

“Held … that the tort of misfeasance in public office involved an element of bad faith and arose when a public officer exercised his power specifically intending to injure the plaintiff, or when he acted in the knowledge of, or with reckless indifference to, the illegality of his act and in the knowledge of, or with reckless indifference to, the probability of causing injury to the plaintiff or persons of a class of which the plaintiff was a member; that subjective recklessness in the sense of not caring whether the act was illegal or whether the consequences happened was sufficient … ”

[46]The application of those requirements in a case where a dangerous criminal was released from custody as a result of decisions by the Home Office and the Metropolitan Police was recently considered in Akenzua v Secretary of State for the Home Department (CA), 23 October 2002

[2002] EWCA Civ 470

. There the issue principally being considered was whether in connection with the issue of recklessness, the claimant must prove foresight of probability of harm to(a) himself,

(b) a particular class of which he was a member, or

(c) members of the public at large and that, in the event, injury was caused to him. The court made clear that, as stated by Lord Steyn in the Three Rivers case at 1233:

“Principle does not require the introduction of proximity as a controlling mechanism in this corner of the law.”

In this respect Simon Brown LJ observed:

“35.As for the respondents’ argument that it would be very strange if the claim could proceed on the basis of misfeasance in public office (which requires that the harm should be foreseen) in circumstances where it would fail in negligence (which only requires that the harm should be reasonably foreseeable), I see nothing strange in this at all: a claim in misfeasance postulates that the claimant can prove altogether more blameworthy conduct than in a negligence action; it is unsurprising that the law should decline to impose a further limiting requirement akin to proximity.”

[47]That being so, as it seems to me, if the judge had made his decision simply on the basis of the proposition set out in paragraph 44(b) above, he would have been in error. What mattered was whether on the basis of the pleaded allegations the ingredients of the tort of misfeasance in public office set out in the Three Rivers case were adequately set out.

[48]In my view they were not, for the reason which the judge identified, namely that the only clear allegation of bad faith made in the pleadings was that on the part of Hoban. There is no allegation of bad faith, targeted malice, or recklessness on the part of any other officer. In particular there is no suggestion that the custody officer who bailed Fury; (see particulars (i) and (iii) acted dishonestly or in bad faith. Nor that, in failing to warn the claimant of Fury’s release on bail, any officer was other than careless at worst: see particulars (ii). Again, there is no plea that there was any formal complaint of theft made by the claimant or that any officer acted in bad faith in regarding the property dispute between the claimant and Fury as a ‘civil matter’ appropriate to be dealt with by civil proceedings: see particulars (iv) and (v). Finally, the fact (if it be the case) that the police were unwilling to take action against Fury because ‘it is believed that Fury was a police informant’ is not a sufficient plea, nor (if proved) is it a sufficient state of affairs to substantiate, an allegation of misfeasance in public office against the officers concerned. In both respects it falls short of the requirement of dishonesty, in the sense of subjective bad faith aimed at, or reckless as to, the occurrence of harm to the claimant: see the Three Rivers, case per Lord Hutton at 41h-42d. Again, therefore, I consider that Poole J came to the correct decision upon the material before him.

Conclusion

[49]For the reasons stated above, I would dismiss this appeal.

[50]I agree.

[51]The case pleaded on behalf of the claimant in this action does not lend itself readily to legal analysis. But, as Lord Justice Potter has pointed out, it is possible to identify claims under three distinct heads:(i) a claim for damages for wrongful arrest and false imprisonment;

(ii) claims for damages in respect of loss caused by negligence; and

(iii) claims for damages in respect of loss caused by misfeasance in public office. The question on this appeal is whether the claimant has a real prospect of succeeding on any of those claims. If not, then the circuit judge was entitled to give summary judgment against the claimant on each claim; and to dismiss the proceedings – see CPR 24.2(a).

[52]I agree with Lord Justice Potter, for the reasons which he has given, that the claimant has no real prospect of succeeding on the claim for wrongful arrest and false imprisonment. As he has observed, it is impossible to contend that the admitted facts did not justify an arrest on reasonable suspicion that the arrestable offence of handling stolen cars had been committed by the claimant; and there is nothing in the facts pleaded to support a contention that the period of detention was longer than properly required to investigate the claimant’s assertions in relation to his special position as an informant.

[53]I agree, also, that the claimant has no real prospect of succeeding in his claims in so far as they are founded on negligence alone. As Lord Justice Potter has pointed out, it was accepted by counsel for the claimant that, in ordinary circumstances, the police do not owe a private law duty in relation to the investigation and suppression of crime. What is required is the assumption of responsibility to the particular claimant. Assumption of responsibility to a particular claimant may, exceptionally, be inferred from circumstances which are peculiar to him – see the observations of Lord Justice May in Costello v Chief Constable of Northumbria Police

[1999] 1 All ER 550

, 563F-G, to which Lord Justice Potter has referred. But there is nothing in the allegations made in the present case – pleaded in paragraph 8 of the amended particulars of claim – from which it could be inferred that a police officer, acting as such, had assumed a responsibility to the claimant in respect of the investigation or suppression of crime.

[54]I accept that the allegations made in the claimant’s pleaded case would (if established) lead to the conclusion that DC Hoban had been guilty of misfeasance in public office. For my part, I would not have dismissed the claim against the Chief Constable on the ground that there was no prospect of success in a claim based on vicarious liability for the acts or defaults of that officer. But the claims to damages based on allegations of misfeasance in public office on the part of DC Hoban are met with the defence of ex turpi causa; and, as it seems to me, that defencemust prevail in the circumstances of the present case. I am satisfied that, on the material before the Court (which includes the witness statement made by the claimant in December 1996), there is no real prospect that the claimant could persuade a court at trial that he was not aware that the arrangements which he thought were offered to him by DC Hoban were corrupt. In so far as he relies on those arrangements – as he has to - to recover the £10,000 paid “to join the Club”, and to recover the monies which he laid out in acquiring stolen vehicles, he relies on a corrupt scheme to which he was knowingly party. The law will not assist a claimant who has to invoke his own knowing participation in a corrupt scheme.

[55]It is said, on behalf of the claimant, that a court should not assume, at the hearing of an application for summary dismissal of his claim, that he will be found at trial to have been knowingly party to a corrupt scheme. I accept, of course, that where a court can see that there is a real issue as to knowing participation, that issue ought to be allowed to go to trial. That is what the Civil Procedure Rules – and, more broadly, considerations of fairness – require. But I do not accept that a claimant is entitled to a trial in relation to an assertion in his pleaded case which he has no prospect of making good. To illustrate the point by an extreme example – in the 21st century a claimant is not entitled to a trial because he asserts, as a necessary element in his claim, that the earth is flat. In the present case the judge held that, on an examination of the undisputed facts, there was no possibility that a reasonable tribunal of fact could reach any conclusion other than that the claimant knew that the scheme in which he was to participate – and in relation to which he was required, and was willing, to pay a substantial sum in order to participate – was wrong and unlawful. For the reasons explained by Lord Justice Potter, the judge was correct to take that view.

[56]There is, however, a claim which – arguably at least – could have been pursued without reliance on the claimant’s own participation in DC Hoban’s corrupt scheme if the elements of the tort had been pleaded. That is the claim based on allegations of misfeasance in public office on the part of officers other than DC Hoban. The misfeasance alleged is the decision to bail John Fury on or about 1 July 1996; the failure to inform the claimant that Fury was, or would be, no longer in custody; the failure to re-arrest Fury for breach of his bail conditions; and the failure to take action against Fury in relation to the sale by Fury of assets said to have been stolen from the claimant. Those allegations - against “other officers” as well as against DC Hoban - are made in paragraph 17(a) of the amended particulars of claim. That a claim for damages in respect of loss suffered by an individual member of the public could be made out where a dangerous criminal was allowed to remain free as a result of decisions made by police officers acting improperly was accepted by this Court in the recent appeal to which Lord Justice Potter has referred, Akenzua v Secretary of State for the Home Department

[2002] EWCA Civ 470

[57]It is necessary, therefore, to ask whether the elements of the tort of misfeasance in public office have been pleaded in relation to officers other than DC Hoban. It is not suggested – and, on the facts as they appear from the material before this Court, it could not be suggested - that this is a case in which there was “targeted malice”; in the sense that the matters or omissions alleged to constitute misfeasance were done or omitted with intent to injure the claimant. What is required, therefore, is knowledge of, or reckless indifference to, the illegality of the action or inaction and reckless indifference as to the outcome – see Three Rivers District Council v Bank of England

[2000] 2 WLR 1220

, 1231-2. As Lord Justice Potter has explained, the allegations made in paragraph 17(a) of the amended particulars of claim do not include allegations that officers (other than DC Hoban) knew of, or were recklessly indifferent to, the illegality of what it was that they were alleged to be doing (or to be failing to do); and do not include allegations that they were recklessly indifferent to the outcome. Allegations of that nature are amongst the most serious – short of conscious dishonesty – that can be made against police officers or, indeed, any public official. They should not be made by a responsible pleader unless he has grounds for believing that they can be made good. If they are not made, in circumstances where the allegation of misfeasance in public office cannot be made out without them, a court is entitled – indeed bound – to act on the basis that the pleader did not feel able to make them.

[58]For those reasons I, too, would dismiss this appeal.

Order:

[1]The appeal be dismissed, and for the avoidance of doubt the entirety of the appellant claimant’s claim against the respondent defendant be struck out;

[2]The costs of and incidental to this appeal under the entire action be the respondent defendant’s in any event, and there be a detailed assessment of such costs on the standard basis, and there is also an assessment of costs to be adjourned generally with permission to apply to restore for that purpose;

[3]There be detailed assessment of costs of the appellant claimant pursuant to paragraph 4 of the Community Legal Service Funding Order 2000. (Order does not form part of the approved judgment)