"The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if: (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial."
“4. The Claimant must serve a proposed revised Particulars of Claim on the Defendant by 4pm on13th September 2024 which must be in numbered paragraphs and comply with the following: a. Contain a concise statement of the facts on which the Claimant relies; b. Where it is alleged that the Defendant (or those for whom the Defendant is said to be liable) knew a fact or matter, the Claimant must specify whether he means that: i. They actually believed it in their own mind; ii. They were reckless (they did not care whether or not it was the case); and/or iii. A reasonable person in their position would have known it was the case; c. Where it is alleged that the Defendant (or those for whom the Defendant is said to be liable) intended something, the Claimant must specify whether he means that: i. They actually intended it in their own mind; ii. They were reckless (they did not care whether or not it would be the case); iii. A reasonable person in their position would have thought it was bound to happen; and/or iv. A reasonable person in their position would have thought it might happen; d. In relation to the above matters of knowledge and intention, the Claimant must set out the facts and matters relied on which would cause a court to reach those conclusions; e. The Claimant must set out each cause of action relied on, identifying the facts and matters relied on for each element of the cause of action (as well as setting out the loss and damage said to have been caused): i. If alleging negligence, the Claimant must set out: 1. What gives rise to the relevant duty; and 2. The relevant breach of duty; ii. If relying on misfeasance in public office, the Claimant must set out: 1. What was unlawful and why it was unlawful; 2. Whether he says that the Defendant intended to harm and, if so, what is meant by intention by reference to the types of intent identified at paragraph 4(c); 3. Whether he says that the Defendant knew that they were acting unlawfully and if so what is meant by ‘knew’, by reference to the types of knowledge identified at paragraph 4(b); iii. If relying on a tort that they caused loss by unlawful means, the Claimant must set out: 1. What were the means; 2. Why they were said to be unlawful; and 3. Whether the loss was intended by the Defendant and if so what is meant by intention by reference to the types of intent identified at paragraph 4(c); iv. If relying on trespass to the person or trespass to goods, the Claimant must set out: 1. Whether the act of trespass by the Libyan Security Services, and any of its effects, was intended by the Defendant; and 2. What is meant by intention by reference to the types of intent identified at paragraph 4(c); v. If relying on theHuman Rights Act 1998 , the Claimant must set out: 1. Each article of the European Convention on Human Rights or its Schedule or its First Protocol that is relied upon; 2. How that article has been breached; and 3. Why it is equitable for the court to extend the one year time limit ins.7(5) of the Human Rights Act 1998 ; vi. If relying on deliberate concealment unders.32(1)(b) of the Limitation Act 1980 , the Claimant must set out: 1. Whether the meeting and its contents were deliberately concealed from the world generally; or 2. Whether there was a deliberate decision to conceal the meeting and its contents from the Claimant; and 3. In either case, the facts and matters relied on to prove or infer that there was such a decision.” a. Contain a concise statement of the facts on which the Claimant relies; b. Where it is alleged that the Defendant (or those for whom the Defendant is said to be liable) knew a fact or matter, the Claimant must specify whether he means that: i. They actually believed it in their own mind; ii. They were reckless (they did not care whether or not it was the case); and/or iii. A reasonable person in their position would have known it was the case; c. Where it is alleged that the Defendant (or those for whom the Defendant is said to be liable) intended something, the Claimant must specify whether he means that: i. They actually intended it in their own mind; ii. They were reckless (they did not care whether or not it would be the case); iii. A reasonable person in their position would have thought it was bound to happen; and/or iv. A reasonable person in their position would have thought it might happen; d. In relation to the above matters of knowledge and intention, the Claimant must set out the facts and matters relied on which would cause a court to reach those conclusions; e. The Claimant must set out each cause of action relied on, identifying the facts and matters relied on for each element of the cause of action (as well as setting out the loss and damage said to have been caused): i. If alleging negligence, the Claimant must set out: 1. What gives rise to the relevant duty; and 2. The relevant breach of duty; ii. If relying on misfeasance in public office, the Claimant must set out: 1. What was unlawful and why it was unlawful; 2. Whether he says that the Defendant intended to harm and, if so, what is meant by intention by reference to the types of intent identified at paragraph 4(c); 3. Whether he says that the Defendant knew that they were acting unlawfully and if so what is meant by ‘knew’, by reference to the types of knowledge identified at paragraph 4(b); iii. If relying on a tort that they caused loss by unlawful means, the Claimant must set out: 1. What were the means; 2. Why they were said to be unlawful; and 3. Whether the loss was intended by the Defendant and if so what is meant by intention by reference to the types of intent identified at paragraph 4(c); iv. If relying on trespass to the person or trespass to goods, the Claimant must set out: 1. Whether the act of trespass by the Libyan Security Services, and any of its effects, was intended by the Defendant; and 2. What is meant by intention by reference to the types of intent identified at paragraph 4(c); v. If relying on theHuman Rights Act 1998 , the Claimant must set out: 1. Each article of the European Convention on Human Rights or its Schedule or its First Protocol that is relied upon; 2. How that article has been breached; and 3. Why it is equitable for the court to extend the one year time limit ins.7(5) of the Human Rights Act 1998 ; vi. If relying on deliberate concealment unders.32(1)(b) of the Limitation Act 1980 , the Claimant must set out: 1. Whether the meeting and its contents were deliberately concealed from the world generally; or 2. Whether there was a deliberate decision to conceal the meeting and its contents from the Claimant; and 3. In either case, the facts and matters relied on to prove or infer that there was such a decision.”
“24.3.2 “no real prospect of succeeding”
"1.1 (1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable: (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate: (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; (f) promoting or using alternative dispute resolution; and (g) enforcing compliance with rules, practice directions and orders."
"21. Under the common law a doctor responsible for providing medical care to a patient owes a duty to the patient to exercise reasonable skill and care to protect the patient’s life and health. If the patient suffers physical or psychiatric injury of a kind which the exercise of such care should have prevented, the doctor is liable to pay damages to compensate the patient for the injury. If the patient dies, such a claim can be pursued by the patient’s personal representative(s) for the benefit of his or her estate. 22. It is not in dispute that such claims can be made in these cases. The claims in issue, however, are not claims made on behalf of the person who died for the harm suffered by that person. They are claims brought by close relatives of that person for harm which those relatives have suffered as a result of witnessing the person’s death (or its immediate aftermath). The critical question on which the validity of the claims depends is whether a doctor, in providing medical services to a patient, not only owes a duty to the patient to take care to protect the patient from harm but also owes a duty to close members of the patient’s family to take care to protect them against the risk of injury that they might suffer from the experience of witnessing the death or injury of their relative from an illness caused by the doctor’s negligence. (We should make it clear that nothing turns for this purpose on whether the negligence consists in an act or an omission). 23. There are two ways of approaching this question. One is by considering the basic legal principles which determine the scope of the duty of care owed by a doctor and the persons to whom this duty is owed. The other approach is to examine the cases in which courts have previously decided whether damages could be recovered by claimants who suffered injury in connection with the death or injury of another person. Historically, the leading cases have involved accidents (mostly road traffic accidents). The question then is whether the rules which have been developed in those cases either apply already or can by a permissible incremental development of the common law be extended to apply to claims of the present kind arising in the field of medical negligence. 24. In arguing these appeals counsel for the claimants focused on the latter approach. Although invited to address the existence of a duty of care in terms of the general principles which apply to doctors, they submitted that it is unnecessary to do so because the relevant requirements for claims of the present kind have been established by case law. That can indeed be said - and has not been disputed on these appeals - as regards claims arising from accidents, using that term in its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means. But a critical question raised by these appeals is whether or not the rules developed in relation to accidents apply where, as a result of negligence of a doctor, a person dies or manifests injury from an illness which proper treatment would have prevented. We do not think that this question can be answered satisfactorily without considering the general principles that determine when a doctor owes a duty of care to someone other than their patient. 25. As it reflects the way in which the appeals were presented, we will start by examining the case law directly concerned with claims for damages for personal injury suffered in connection with the death, injury or imperilment of another person. We will then test our provisional conclusions by reference to the general principles which determine when a doctor who assumes responsibility for providing medical services to a patient owes a duty of care to prevent harm to a third party."
"43. Of the two claimants who were present at the ground, one lost two brothers in the disaster and the other lost his brother-in-law. Their claims failed because a sufficiently close tie of love and affection with the deceased could not be presumed from their family relationship and had not been proved by evidence. Claimants who had seen their son’s body in the mortuary after the disaster for the purpose of identification were held not to come within the scope of the “aftermath” of the disaster. Claims based on seeing the disaster on television failed because the televised images of the unfolding tragedy (which did not depict the suffering of recognisable individuals) could not be treated as equivalent to being present at the stadium."
"45. The members of the House of Lords were substantially agreed about what those requirements were. Lord Steyn stated them, at p 496D-E, as being: “(i) that [the claimant] had a close tie of love and affection with the person killed, injured or imperilled; (ii) that he was close to the incident in time and space; (iii) that he directly perceived the incident rather than, for example, hearing about it from a third person.” Lord Hoffmann summarised the requirements, at p 502G-H, in very similar terms as follows: “(1) The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (e.g. spouses, parent and child) but must otherwise be established by evidence. (2) The plaintiff must have been present at the accident or its immediate aftermath. (3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else.” Lord Goff of Chieveley gave a similar summary of the requirements (p 472E). Lord Griffiths adopted Lord Hoffmann’s summary (p 462G-H), and Lord Browne-Wilkinson agreed with the speeches of both Lord Steyn and Lord Hoffmann (p 462B-C)."
"50. In case it was necessary to decide whether to depart from any of these decisions of the House of Lords, in particular Alcock, these appeals have been heard by a panel of seven Justices. But in the event none of the parties has urged us to depart from any earlier decision reached at this appellate level. The claimants have based their submissions squarely on the existing case law. They argue that allowing recovery in the present cases either follows from or is at any rate consistent with what has previously been decided by the House of Lords. 51. A feature of the law as it has evolved is the distinction between “primary” and “secondary” victims: see para 40 above. Precisely how the distinction is or should be drawn, if at all, potentially raises difficult questions: see e.g. the Law Commission Report on Liability for Psychiatric Illness (1998) (Law Com No 249), paras 5.52, 5.54; Harvey Teff, “Liability for negligently inflicted psychiatric harm: justifications and boundaries” (1998) 57 CLJ 91; Chris Hilson, “Liability for psychiatric injury: primary and secondary victims revisited” (2002) 18 PN 167. In W v Essex County Council[2001] 2 AC 592 , 601, the House of Lords expressed the view that the concept is still to be developed in different factual situations. But it is not an issue on these appeals. It is common ground that the claimants are to be classified as “secondary victims”. The essential point is that the harm for which they are claiming compensation in each case is harm brought about indirectly by injury caused to another person."
"71. Sion, Walters, Shorter and Ronayne were not cases in which there had been an external, traumatic, event in the nature of an accident caused by the defendant’s negligence. In none of these cases, however, did the court decide the question whether in principle the rules developed in accident cases ought to be applied. In the latter three cases this question was not even raised or mentioned: it was simply assumed that the same rules applied. Instead, the judgments in all these cases focused on whether it could be said that the claimant had suffered psychiatric illness because of a “sudden shock” or a “sudden appreciation of a horrifying event”. 72. Those phrases reflect language used in Alcock. Lord Oliver, at p 411F, identified as one of the features of all the reported cases that the injury “arose from the sudden and unexpected shock to the plaintiff’s nervous system”. Lord Ackner said, at p 401F, that: “‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.” Those observations were no doubt true as descriptions of how historically the causation of psychiatric illness in accident cases was understood. The very term “nervous shock”, which was still commonly used in court proceedings when Alcock was decided, embodies such an understanding. The crude mechanical model which attributes psychiatric illness in such cases to an “assault on the nervous system” has, however, long since been discredited: see e.g. the criticism made in the Law Commission Report, para 5.29. 73. The remarks of Lord Ackner and Lord Oliver quoted above were not necessary to the decision of the House of Lords in Alcock and we do not consider that those dicta establish an additional restriction on the recovery of damages by secondary victims nor that the law is tied to an outdated theory of the aetiology of psychiatric illness. The requirements established by the decision in Alcock were, in our view, accurately and authoritatively summarised in Frost (see para 45 above). They do not include a requirement that the claimant’s psychiatric injury must have been caused by a “sudden shock to the nervous system”. None of the law lords in Frost endorsed such a requirement and Lord Goff expressly stated, at p 489E-F, that “the nature of PTSD illustrates very clearly the need to abandon the requirement of nervous shock in these cases, and to concentrate on the requirement that the plaintiff should have suffered from a recognised psychiatric illness”. 74. With regard to causation, it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced."
"94. Although they considered themselves bound by Novo to apply such a test, the Court of Appeal could see no good reason why the gap in time (short or long) between the negligence and the horrific event caused by it should affect the defendant’s liability. Nor can we. Sir Geoffrey Vos MR postulated a case of a negligent architect who designs a door in a load-bearing wall without specifying an RSJ, causing masonry to fall on a primary victim’s head years later (paras 79-80). These facts are similar to those of the actual case of Clay v AJ Crump & Sons Ltd[1964] 1 QB 533 , where an architect who was responsible for the safety of a building site negligently left a wall standing when a building was demolished. The architect was held liable to compensate a person working on the site who was injured when over two months later the wall collapsed. In agreement with the Court of Appeal, we see no reason why, in a case of this kind, the gap in time between the negligence and the accident should prevent a claim by a secondary victim when it does not prevent a claim by a primary victim. If, for example, a mother who was present and saw masonry fall on her child’s head suffered psychiatric injury, her ability to make a claim cannot rationally depend on the length of time between the negligence and the accident. 95. Typically in accident cases, the accident and the defendant’s negligent act or omission which caused the accident occur at much the same time. That is almost inevitably so in cases such as McLoughlin involving road accidents. We agree, however, with Chamberlain J that there is nothing in any of the House of Lords authorities to suggest that the right to recover damages for personal injury caused by witnessing a person’s death or injury in an accident is affected by the length of time between the negligent act or omission and the accident. The requirements established by the decision in Alcock include closeness in space and time to, and direct perception of, the accident (or “the event caused by the defendant’s breach of duty to the primary victim”, per Lord Oliver at p 416E). They do not include any requirement of closeness in space and time to the defendant’s breach of duty. There is no suggestion in Alcock and Frost that the timing of the negligent acts or omissions was a relevant consideration in those cases. In Frost Lord Goff mentioned that the immediate cause of the Hillsborough disaster was the decision of a senior police officer to open an outer gate to the stadium without cutting off the crowd’s access to two pens in which crushing then occurred:[1999] 2 AC 455 , 465H-466C. But nothing was said by any of the law lords (or the lower courts) to suggest that the claims of either relatives or police officers would be affected if the operative negligence lay in decisions on crowd control or police deployment taken in the days before the match. 96. Although in the present cases the defendants’ stance on this point appears to have fluctuated (compare para 63 of Chamberlain J’s judgment with para 7 of the judgment of the Court of Appeal), in his oral submissions on their behalf in this court Mr Simeon Maskrey KC made it clear that the defendants do not contend that there is any requirement of closeness in time between the defendant’s negligence and the accident which caused the claimant psychiatric injury. In our opinion, that concession was rightly made."
"103. There is no rational answer to any of the questions we have posed because there is no principle which justifies any version of the proposed test. We agree with the Court of Appeal that it is illogical to make the liability of a defendant for injury caused to a secondary victim depend on whether the event witnessed by the claimant was or was not the “first manifestation of damage” to the primary victim. Should damages be recoverable in the absence of an accident?"
"104. Having rejected the two justifications for the result reached in Novo canvassed by the courts below, we must consider whether Novo was correctly decided. In our opinion it was, for the reason given by Lord Dyson MR, namely, that the claim could not succeed because the claimant was not present at the scene of the accident or its immediate aftermath and the event which she witnessed was not an accident. 105. We think it relevant to note first that the occurrence or manifestation of injury is not part of what defines an accident. An accident is an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by that event. In the many cases which have involved accidents, the right to claim damages has depended on whether the claimant was present at and directly perceived the accident (or its immediate aftermath). Witnessing injury caused by the accident has not been treated as either necessary or sufficient. It is not sufficient because Alcock and other cases in that line of authority have held that, where the claimant was not present at the scene of the accident (or its immediate aftermath) but saw the injured victim or the body of the victim afterwards, damages cannot be recovered. Nor is witnessing injury caused by the accident necessary because a claim may succeed where the claimant fears for the safety of another person, but no injury is in fact suffered by that person. Lord Oliver made this point when he said in Alcock, at p 412A: “There may, indeed, be no primary ‘victim’ in fact. It is, for instance, readily conceivable that a parent may suffer injury, whether physical or psychiatric, as a result of witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event, the child escapes unharmed.” 106. Since witnessing injury sustained by another person is neither a necessary nor sufficient condition for a claim as a secondary victim in an accident case, no ready or obvious analogy can be drawn from such cases to cases where the claimant witnesses injury that has not been caused by any external accident."
"140. We return to the point with which we began this judgment, that the general policy of the law is opposed to granting remedies to third parties for the effects of injuries to other people. What therefore principally requires justification is not the narrowness of the category of cases in which a claimant who suffers personal injury which is secondary to the death or injury of another person can recover damages but the fact that it exists at all. Lord Oliver made this point in Alcock, when he said, at p 410H: “What is more difficult to account for [than the general rule] is why, when the law in general declines to extend the area of compensation to those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact.” Lord Oliver regarded the existence of this exception as “now too well established to be called in question” and so do we. 141. Unless the exception defined by the Alcock line of authority is to become the general rule, however, a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds. Wherever the line is drawn, some people who suffer what may be serious illness in connection with the death or injury of another person will be left uncompensated. The mother who learns in a telephone call that her child has been killed in a road accident may suffer an illness no less severe than a mother who was present at the scene and saw the accident. But there is a rough and ready logic in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim. These limitations are justified, not by any theory that illness induced by direct perception is more inherently worthy of compensation than illness induced by other means; but rather by the need to restrict the class of eligible claimants to those who are most closely and directly connected to the accident which the defendant has negligently caused and to apply restrictions which are reasonably straightforward, certain and comprehensible to the ordinary person. 142. We have not been asked on these appeals to alter or abrogate the limits on the recovery of damages by secondary victims in accident cases established by the decision of the House of Lords in Alcock. Instead, this court is asked to recognise as analogous a category of cases in which illness is sustained by a secondary victim as a result of witnessing a death or manifestation of injury which is not caused by an external, traumatic event in the nature of an accident but is the result of a pre-existing injury or disease. For the reasons given, we do not consider that such cases are analogous. That conclusion is reinforced by our opinion that the persons whom doctors ought reasonably to have in contemplation when directing their minds to the care of a patient do not include members of the patient’s close family who might be psychologically affected by witnessing the effects of a disease which the doctor ought to have diagnosed and treated. Hence there does not exist the proximity in the relationship between the parties necessary to give rise to a duty of care."
"One of the most important distinctions always to be observed lies in the law's essentially different approach to the different kinds of damage which one party may have suffered in consequence of the acts or omissions of another. It is one thing to owe a duty of care to avoid causing injury to the person or property of others. It is quite another to avoid causing others to suffer purely economic loss. A graphic illustration of the distinction is embodied in the proposition that: "
"14A Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual. (1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued. (2) Section 2 of this Act shall not apply to an action to which this section applies. (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below. (4) That period is either— (a) six years from the date on which the cause of action accrued; or (b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above. (5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action. (6) In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both— (a) of the material facts about the damage in respect of which damages are claimed; and (b) of the other facts relevant to the current action mentioned in subsection (8) below. (7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. (8) The other facts referred to in subsection (6)(b) above are— (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and (b) the identity of the defendant; and (c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant. (9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above. (10) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire— (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice. 14B Overriding time limit for negligence actions not involving personal injuries (1) An action for damages for negligence, other than one to which section 11 of this Act applies, shall not be brought after the expiration of fifteen years from the date (or, if more than one, from the last of the dates) on which there occurred any act or omission— (a) which is alleged to constitute negligence; and (b) to which the damage in respect of which damages are claimed is alleged to be attributable (in whole or in part). (2) This section bars the right of action in a case to which subsection (1) above applies notwithstanding that— (a) the cause of action has not yet accrued; or (b) where section 14A of this Act applies to the action, the date which is for the purposes of that section the starting date for reckoning the period mentioned in subsection (4)(b) of that section has not yet occurred; before the end of the period of limitation prescribed by this section."
"The elaborate and confusing analyses of section 32(1)(b) put forward in Williams, The Kriti Palm and the present case represent a wrong turning in the law. It should return to the clarity and simplicity of Lord Scott’s authoritative explanation in Cave (para 60): “A claimant who proposes to invoke section 32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question.” What is required is (1) a fact relevant to the claimant’s right of action, (2) the concealment of that fact from her by the defendant, either by a positive act of concealment or by a withholding of the relevant information, and (3) an intention on the part of the defendant to conceal the fact or facts in question."
"7 Proceedings. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may: (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (2) In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. (5) Proceedings under subsection (1)(a) must be brought before the end of: (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (6) In subsection (1)(b) “legal proceedings” includes— (a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal. (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes ofArticle 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. (8) Nothing in this Act creates a criminal offence. (9) In this section “rules” means— (a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court, (b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes, (c) in relation to proceedings before a tribunal in Northern Ireland— (i) which deals with transferred matters; and (ii) for which no rules made under paragraph (a) are in force, rules made by a Northern Ireland department for those purposes, and includes provision made by order undersection 1 of the Courts and Legal Services Act 1990 . (10) In making rules, regard must be had to section 9. (11) The Minister who has power to make rules in relation to a particular tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to: (a) the relief or remedies which the tribunal may grant; or (b) the grounds on which it may grant any of them. (12) An order made under subsection (11) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate. (13) “The Minister” includes the Northern Ireland department concerned."
"The jurisdiction of the Tribunal shall be (a) to be the only appropriate tribunal for the purposes ofsection 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section."
"73. Section 7(5) of the HRA provides that proceedings under section 7(1)(a) (a claim that a public authority has acted in a way which is incompatible with a Convention right) must be brought “before the end of (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances”. 74. Melanie died on20 April 2005 . Proceedings were issued on11 August 2006 , almost four months after the expiry of the one year limitation period. The question that arises, therefore, is whether it was equitable to extend the one year period by almost four months having regard to all the circumstances. 75. The relevant principles are not in dispute. The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed insection 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However, I agree with what the Court of Appeal said in Dunn v Parole Board[2009] 1 WLR 728 , paras 31, 43 and 48 that the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language ofsection 33(3) of the Limitation Act 1980 . 76. The judge expressed his final conclusion on the limitation issue at para 131: "
"36. The central question is whether the claim, relying as it does onarticle 3 of the Convention , will determine the civil rights of these claimants. The prior question is whether the claimants can rely upon article 3 in these judicial review proceedings. To do so the claimants must show that they are “victims” for the purposes ofarticle 34 of the Convention . We shall return to whether the public law Wednesbury challenge determines a civil right. 37. These proceedings have been brought in the public interest, rather than to vindicate the personal interests of Reprieve or the two claimant Members of Parliament. Are they nonetheless victims as that word is interpreted by the Strasbourg Court? 38. The claimants suggest that any decision by a court in a claim relying on Convention rights necessarily amounts to a determination of the civil rights of the party who relies on them. Therefore, they submit that it follows that any decision on their claim will amount to a determination of their civil rights. 39. Convention rights are not free-floating entities which are available to and enforceable by anyone who disagrees with a decision of a public authority on the grounds that it breaches, or may breach, somebody’s Convention rights. Convention rights have effect in the law of England and Wales to the extent provided for by the 1998 Act. Therefore, the starting point is not article 3, or article 6(1), but that Act. The claimants’ case is that the Prime Minister breached section 6(1) of the 1998 Act in deciding not to hold a judicial inquiry, thereby failing to comply with the positive investigative obligation imposed by article 3. The effect of section 7(1) and (7) of the 1998 Act is that a person can bring a claim founded on a Convention right, and only has standing in an application for judicial review, “if he would be a victim for the purposes ofArticle 34 of the Convention if proceedings were brought in the [Strasbourg Court] in respect of that act”. The clear purpose of section 7 of the 1998 Act is to permit, and only to permit, a victim to litigate an alleged breach of Convention rights. It is only if the litigant is a victim that the Convention right in question can arguably be a “civil right” of his for the purposes of article 6(1). 40. There are two broad groups of cases in which the Strasbourg Court has decided that a person who does not allege, or cannot show, that he himself has directly suffered a breach of a Convention right can nevertheless bring a claim in Strasbourg. 41. The first group of cases concerns secret surveillance. The context of the most recent case to which we were referred, Zakharov, was possible interception of mobile telephone communications by the Russian state. The applicant could not show that his communications had been intercepted. Instead he claimed that the relevant legislation itself, rather than a specific interception of his communications, was an interference with his article 8 rights. In para 164 of its judgment, the Strasbourg Court noted that the Convention does not provide for an actio popularis. In general, its task is not to review legislation in the abstract, but to decide whether laws which were applied to the applicant violated the Convention. A person must be able to show that he is ‘directly affected’ by the measure complained of. This was indispensable but was not to be applied in a mechanical way. The Strasbourg Court then reviewed the cases about secret surveillance. In paras 171-172, it clarified the circumstances in which an applicant “can claim to be the victim of a violation of article 8 without having to prove that a secret surveillance measure had in fact been applied to him”. Before an applicant would be able to claim that the mere existence of secret surveillance measures made him a victim for the purposes of article 34, the court would take into account the scope of the relevant legislation and the availability of safeguards at national level. It held that Russian law was defective in some respects and gave rise to the risk of arbitrary conduct. The law did not provide for adequate judicial supervision and safeguards against abuse. This was a breach of article 8 which directly affected the applicant so that he should be treated as a victim. 42. This line of cases provides no analogy with the circumstances of this claim. 43. The second group of cases includes three broad types: (a) direct victims who have died in circumstances which engage article 2 (the right to life) in which others, such as their close relatives, can bring a claim; (b) applicants who have raised complaints of breaches of other articles of the Convention but who have died during proceedings; and (c) claims brought by a representative organisation on behalf of actual or likely victims (such as Lizarraga). 44. Mr Jaffey relied most strongly on Campeanu. Even the title of the case is instructive. The applicant was the Centre for Legal Resources on behalf of Valentin Campeanu pursuing a discrete claim on behalf of an individual. This decision is not authority for any general principle; and certainly not for a principle that, to make the Convention effective, a person who cannot point to any violation of his own rights should nevertheless qualify as a victim where none has come forward, or can be identified, but there is some evidence that there might be possible victims somewhere in the world. As the Strasbourg Court itself recognised, Campeanu was an exceptional case. Mr Campeanu was a victim of apparent, and documented, breaches of article 3. He lacked the capacity to make a claim for himself while he was alive. He had then died. The state had breached its obligation to appoint a person to represent his interests while he was alive. The applicant organisation had contact with the victim while he was alive and had then acted on his behalf in domestic proceedings without objection from the Romanian authorities. It had been recognised as his de facto representative. This decision of the Strasbourg Court does not establish that were the claimants to make an application relying on the investigative obligation under article 3, it would recognise them as victims for the purposes ofarticle 34 of the Convention . 45. A person who is alive and who has suffered article 3 ill treatment knows what he has suffered. He might not know who inflicted that treatment. At most, such a person might be able to rely, by analogy, on the surveillance cases, to argue against a contracting state, or several contracting states, that he is a victim but does not know who the perpetrator was. There is no guarantee that the Strasbourg Court would recognise such a speculative claim. But that potential claim, by a direct victim of ill treatment, is stronger than the claimants’ case. They have not suffered ill treatment arguably prohibited by article 3. They do not represent a person unable to speak for himself who has. 46. To recognise the claimants as victims of an alleged violation of the procedural obligation under article 3 in this case would mark a significant development of the Strasbourg case law and, as such, is not a step that a domestic court should take. That said, we do not consider it likely that the Strasbourg Court would recognise these claimants as victims of any violation of article 3. To do so would introduce a right of private individuals and organisations to bring claims in the public interest, something that the court has set its face against save in very limited circumstances. 47. We conclude that the claimants are not victims of any violation of article 3 for the purposes ofarticle 34 of the Convention . The effect of section 7(1) of the 1998 Act is that they cannot bring a claim that the Prime Minister has acted in way which is made unlawful by section 6(1). Moreover, the effect of section 7(3) is that, in so far as the judicial review claim rests on such an allegation (by not complying with the investigative obligation imposed by article 3) the claimants do not have standing to bring that claim."
“13-130 Introduction The tort of misfeasance in public office originated in the electoral corruption cases of the late seventeenth century,707 was expanded in the 19th century to cover the liability of judges of inferior courts for malicious acts within their jurisdiction,708 and has now been authoritatively defined in the speech of Lord Steyn in Three Rivers DC v Bank of England (No.3).709 Lord Steyn explained that there were two different forms or limbs of the tort: “First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”710 …that, if conduct is lawful apart from the motive, a bad motive will not make [the defendant] liable.”711”
“13-131 Targeted malice The difficulty of establishing liability under this limb is illustrated by Jones v Swansea City Council.712 Jones alleged that the Council was liable for misfeasance in public office in maliciously voting for a resolution rescinding consent for a change in the use of commercial premises that he leased from the Council. He claimed that the malice stemmed from the personal antipathy of the leader of the Labour group which had infected all the other members of the group who voted as a block for the resolution. At first instance, the judge said that the evidence of the leader did not establish that he was “not motivated by malice”, but concluded that despite the grounds for suspicion, malice had not been established on the balance of probabilities and that his motive was about “having his own way”
“Some cases of ‘targeted’ malice are very clear, such as the early Canadian case of Roncarelli v Duplessis[1959] SCR 121 (discussed by the Supreme Court of Canada in Odhavji Estate v Woodhouse [2003] SCC 69 at [19]). But the weight of authority is against treating targeted malice as being in a special category, rather than as being at the brightest end of a spectrum (see Odhavji at [22] and the decision of this House in Three Rivers District Council v Governor and Company of the Bank of England [2003] 2 A.C. 1 at pp.191–192 (Lord Steyn), 219–223 (Lord Hutton), 230–231 (Lord Hobhouse) and 235 (Lord Millett who expressed most strongly the view that there is a single tort of intention). A rule that the targeted malice limb (only) of the tort is actionable without proof of special damage would therefore be unprincipled and difficult to apply.”
“13-132 Untargeted malice The basis of liability for untargeted malice was reviewed in Three Rivers DC v Bank of England (No.3).717 Here some 6,000 investors who lost deposits when the fraudulently run Bank of Credit and Commerce International (BCCI) collapsed, claimed that the senior officials of the Bank of England acted in bad faith in: (a) licensing BCCI in 1979 when they knew it was unlawful to do so; (b) shutting their eyes to what was happening at BCCI after the license was granted; and (c) failing to close BCCI when the known facts cried out for action in the mid-1980s. The question was whether these allegations were sufficient to ground liability for misfeasance in public office on the part of the Bank of England. The Bank argued that for liability under the second limb it must be shown that the officials knew of the illegality of their acts and of the probability of resulting injury and that recklessness as to the illegality and probable injury was not sufficient. The claimant argued that objective recklessness in the sense of there being an obvious risk to which the defendant had failed to give any thought, was sufficient. The House of Lords held that recklessness was sufficient but only in its subjective sense. Lord Steyn commented that to impose liability where the defendant had acted with reckless indifference to the illegality of his act and the probability of its causing injury, was “an organic development, which fits into the structure of our law governing intentional torts” and that “the policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences”.718 However, he also said that the difficulty with a test of objective recklessness was that “it could not be squared with a meaningful requirement of bad faith in the exercise of public powers which is the raison d’etre of the tort”
"16-139 Need for interference with possession Though the right to possession, without actual possession, may enable a claimant in conversion to maintain a claim, in trespass the claimant must be in possession at the time of the interference. “The distinction between the actions of trespass and trover is well settled: the former is founded on possession: the latter on property.”645 There are certain exceptions to this rule. First, a trustee not in possession may sue in trespass any third party notwithstanding that the chattels are in the hands of the beneficiary.646 Secondly, an executor or administrator may sue in trespass anyone interfering with the chattels of the deceased before probate or letters of administration are granted. The representative’s title relates back to the time of the trespass.647 Thirdly, the owner of a franchise (for example to take wreck or treasure trove) can sue in trespass anyone taking the goods before he could seize them.648 Fourthly, where a bailment is determinable at will, the bailor retains sufficient possession to entitle him to sue third parties;649 and a fortiori, the same rule applies where the bailment has actually been determined.650 "
“14-01 Trespass to the person It has long been recognised that “[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate”.1 As such, interference, however slight, with a person’s elementary civil right to security of the person, and self-determination in relation to his own body, constitutes trespass to the person. Trespass to the person may take three forms, assault, battery and false imprisonment: “An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person”, and false imprisonment is “the unlawful imposition of constraint on another’s freedom of movement from a particular place”.2 These torts are all descended from the ancient writ of trespass. The two distinctive features of trespass were that it is actionable per se and that the interference with the claimant’s interest has to be a “direct” consequence of the defendant’s act. Indirect consequences were the subject of a writ of “trespass on the case”, later referred to as an “action on the case” or simply “case”
“If one man intentionally applies force directly to another, the [claimant] has a cause of action for assault and battery, or, if you so please to describe it, in trespass to the person… If he does not inflict injury intentionally but only unintentionally, the [claimant] has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care.”16 However, although Danckwerts LJ concurred with Lord Denning’s judgment on negligent trespasses, Lord Denning himself offered as an alternative ratio in Letang17 the idea that any action for trespass to the person, including intentional trespass, was barred after three years as an action for personal injuries arising out of “breach of duty”.18 Hence it is not yet finally established that direct injuries inflicted via negligence are not actionable in trespass.”