“It is a simple issue to be tried here and that is why it was that the defendant did not pay PAYE, VAT and National Insurance and student loan deductions; a very simple issue for the jury to determine. On the question of a case to answer; could a jury, properly directed, convict these defendants? I shall take them one at a time; the first defendant. He is the brains behind the brewery. I do not mean that in any discourteous to the second defendant but it is his brainchild; the means by which he thought, he says, his confiscation order could be paid. He was in day-to-day control of the operation and involved in engaging and trying to engage accountancy help in 2012, the autumn of 2014 and on the day before his arrest. No VAT to speak of was paid, nor any PAYE, National Insurance or student loan deductions were paid during the indictment period. This amounts, we now know, to [be] about£700,000 unpaid. Even if the VAT position was not easily quantifiable in 2013 and 2014, the defendant must have known that he was not entitled to retain the other deductions. He must also have known that, overall, there was a VAT liability. It is open to a jury that that retention of those sums was deliberate with the dishonest intention to not pay the Revenue such that it calls for an explanation from the defendant, should he choose to give evidence.”
"The correct approach on applications by defendants is, in my judgment, as follows: “i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 ." “i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 ."
“21. The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that -even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial. 22. So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that something may turn up. Mr Lightman QC referred me to the recent cases of Riley v Sivier[2021] EWHC 79 (QB) , at [14] , and Hunt v Times Newspapers[2012] EWHC 110 (QB) , at [28]-[29] . Both of those echo long-established authority both pre and post CPR such as the well-known dictum of Megarry V-C in Lady Anne Tennant v. Associated Newspapers Group Ltd[1979] FSR 298 . These are encapsulated in the Court of Appeal's decision in ICI which is itself summarised in Easyair .”
“23. I should deal specifically with the law on summary judgment and claims in fraud, not least because it was at least implicit in the submissions for the Kings that such serious allegations were not suitable for summary determination. 24. The reality is that while the court will be very cautious about granting summary judgment in fraud cases, it will do so in suitable circumstances, and there are numerous cases of the court doing so. This is particularly the case where there is a point of law; but summary judgment may be granted in a fraud case even on the facts. I have done so in a case heard very close in time to this application: Foglia v The Family Officer and others[2021] EWHC 650 (Comm) , where at [14] I gave some examples of other cases in which this course was also followed. In other cases, such as AAI Consulting Ltd v FCA[2016] EWHC 2812 (Comm) and Cunningham v Ellis[2018] EWHC 3188 (Comm) fraud claims were struck out on the basis that the particulars of claim were inadequate in themselves to support the claims being made. 25. In terms of the approach to summary judgment in fraud claims Primekings commended to my attention the judgment of Stuart Smith J in Portland Stone Firms Ltd v Barclays Bank plc[2018] EWHC 2341 (QB) at [25] – [29] , in the context of the approach to be taken when faced with an application to strike out a claim in fraud. In summary: i) The Court should bear in mind that cogent evidence is required to justify a finding of fraud or other discreditable conduct, reflecting the court's conventional perception that it is generally not likely that people will engage in such conduct. ii) Pleadings of fraud should be subjected to close scrutiny and it is not possible to infer dishonesty from facts that are equally consistent with honesty. iii) However, in view of the common feature of fraud claims that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy, the Court should adopt a "generous" approach to pleadings.” i) The Court should bear in mind that cogent evidence is required to justify a finding of fraud or other discreditable conduct, reflecting the court's conventional perception that it is generally not likely that people will engage in such conduct. ii) Pleadings of fraud should be subjected to close scrutiny and it is not possible to infer dishonesty from facts that are equally consistent with honesty. iii) However, in view of the common feature of fraud claims that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy, the Court should adopt a "generous" approach to pleadings.”
“135. Supperstone J said in Baxendale-Walker, supra, para 70, that where the court is being asked by the Claimant to allow allegations of serious wrongdoing against reputable professionals to go to trial, the Claimant has the burden at trial of persuading the court to the standard of proof required to prove the most serious of allegations (see Secretaryof State for the Home Department v Rehman[2003] 1 AC 153 at para 55). That is why an allegation of fraud must be supported by cogent evidence and why the court usually begins with the assumption that an innocent explanation will be preferred (ibid. at paras 54-55; and Jafari-Fini v Skillglass Ltd[2007] EWCA Civ 261 at para 49). 136. I agree with the Lord Chancellor’s submission that the Appellants have done little more than make bare assertions of dishonesty by the LAA’s employees. They have provided no particulars of any malice or dishonesty, and no explanation whatsoever as to why the conduct complained of is only consistent with dishonesty and not with any innocent explanation. This is not conduct which intrinsically suggests fraud or deceit in any way. As such, they have failed to plead properly essential particulars of his claim”
"In contrast with the applications underCPR 3.4 (2)(b) , the applications underCPR 3.4 (2)(a) andCPR 24.2 are concerned with the merits of the claim, specifically whether the claim meets the (low) threshold of what I shall call "reasonable arguability"
“17. The fullest statement of the relevant principles upon which Mr Swainston QC relied is that of Lord Millett from [184] onwards: “184. It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence: see Kerr on Fraud and Mistake 7th ed (1952), p 644; Davy v Garrett(1878) 7 Ch D 473 , 489; Bullivant v Attorney Genera; for Victoria[1901] AC 196 ; Armitage v Nurse[1998] Ch 241 , 256. This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so. 185. It is important to appreciate that there are two principles in play. The first is a matter of pleading. The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him. If the pleader means “dishonestly” or “fraudulently”, it may not be enough to say “wilfully” or “recklessly”
“189. It is not, therefore, correct to say that if there is no specific allegation of dishonesty it is not open to the court to make a finding of dishonesty if the facts pleaded are consistent with honesty. If the particulars of dishonesty are insufficient, the defect cannot be cured by an unequivocal allegation of dishonesty. Such an allegation is effectively an unparticularised allegation of fraud. If the observations of Buxton LJ in Taylor v Midland Bank Trust Co Ltd (unreported)21 July 1999 are to the contrary, I am unable to accept them.” 19. In his reply submissions, Mr Swainston QC put the test which he submitted was to be derived from Lord Millett's speech in these terms: “…the primary facts must necessarily lead to the inference that Mr Kekhman is guilty of fraud because otherwise and ex hypothesi the primary facts can be consistent with innocence…You don't get to arguability until you've established that there is a proper fraud plea. You don't establish that there is a proper fraud plea before particulars are pleaded which are only consistent with Mr Kekhman being dishonest and which cannot be consistent with Mr Kekhman being honest.” 20. I agree with Mr Gourgey QC that this overstates what is required for a valid plea of fraud. The claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. As Lord Millett put it, there must be some fact “which tilts the balance and justifies an inference of dishonesty”
“55. As the Earl of Halsbury LC said in Bullivant v Attorney General for Victoria[1901] AC 196 , 202, where it is intended that there be an allegation that a fraud has been committed, you must allege it and you must prove it. We are concerned at this stage with what must be alleged. A party is not entitled to a finding of fraud if the pleader does not allege fraud directly and the facts on which he relies are equivocal. So too with dishonesty. If there is no specific allegation of dishonesty, it is not open to the court to make a finding to that effect if the facts pleaded are consistent with conduct which is not dishonest such as negligence. As Millett LJ said in Armitage v Nurse[1998] Ch 241 , 256G, it is not necessary to use the word “fraud” or “dishonesty” if the facts which make the conduct fraudulent are pleaded. But this will not do if language used is equivocal: Belmont Finance Corporation Ltd v Williams Furniture Ltd[1979] Ch 250 , 268 per Buckley LJ. In that case it was unclear from the pleadings whether dishonesty was being alleged. As the facts referred to might have inferred dishonesty but were consistent with innocence, it was not to be presumed that the defendant had been dishonest. Of course, the allegation of fraud, dishonesty or bad faith must be supported by particulars. The other party is entitled to notice of the particulars on which the allegation is based. If they are not capable of supporting the allegation, the allegation itself may be struck out. But it is not a proper ground for striking out the allegation that the particulars may be found, after trial, to amount not to fraud, dishonesty or bad faith but to negligence. 56. In this case it is clear beyond a peradventure that misfeasance in public office is being alleged. There is an unequivocal plea that the Bank was acting throughout in bad faith. The Bank says that the facts relied on are, at best for the claimants, equally consistent with negligence. But the substance of that argument is directed not to the pleadings as such, which leave no doubt as to the case that is being alleged, and the basis for it in the particulars, but to the state of the evidence. The question whether the evidence points to negligence rather than to misfeasance in public office is a matter which must be judged in this case not on the pleadings but on the evidence. This is a matter for decision by the judge at trial.”
“Even if she had gone directly to the authorities, the professional responsibility for the case assumed first by the police and then by the CPS would prima facie have made the latter for all legal purposes the prosecutor. It would have been necessary to establish that she had deliberately manipulated them into taking a course which they wouldnot otherwise had taken if, pursuant to Martin v Watson, she was to be regarded in law as the prosecutor.”
“In my judgment, provided the CPS makes an independent decision to prosecute, and its process is not overborne or perverted in some way by the complainant, the complainant is protected.”
“…the Court should be very cautious before reaching the conclusion that the authorities were unable (or even, as Mr Warby emphasized, virtually unable) to exercise independent judgment.”
“This is not to say, as Mr Johnson submitted it was, that the mere provision of false information to a prosecuting authority leading to a prosecution makes the provider a prosecutor. I accept that the test is, as he argued, “drawn more restrictively”
“87. In Commissioner of Police for the Metropolis v Copeland[2014] EWCA Civ 1014 , the Court of Appeal, Moses LJ giving the sole reasoned judgment, held that the "simple quest" is to identify the person who is responsible for the prosecution (para 27). In my opinion, that formulation does not permit the kind of wide-ranging and unprincipled inquiry urged on me by Mr Bowers. What Moses LJ said was in the context of applying Lord Keith's reasoning and conclusion. Further, it is implicit in Moses LJ's judgment that there could be only one prosecutor. … 90. In the instant case, there is no evidence of any deliberate manipulation of the CPS by HMRC, or that the former's decision to prosecute was overborne and perverted by the latter. As I have already said, in early 2015 the CPS was fully aware of the state of the investigation vis-à-vis HSBC and the progress, or lack of it, in relation to disclosure. In any event, it is extremely difficult to see how omissions in these respects could possibly amount to deliberate manipulation…”
“Given my conclusion that the Claimant has no real prospect of establishing that the prosecutor did not have reasonable and probable cause for beginning and then maintaining these proceedings, the issue of malice does not arise. Even so, I consider that I should comment on just two matters. First, there is force in the Claimant’s case that a charging decision was made prematurely in December 2015 because the CPS believed that the undertaking given in the related judicial review proceedings applied to them. However, although relevant to the fulfilment or otherwise of the Full Code Test, this factor is not relevant to the issue of malice. A rushed decision does not have the hallmarks of a decision taken with an improper motive. Secondly, although there is some indication that the reluctance to pursue lines of inquiry against HSBC was generated by a perception in the CPS, at least at one stage, that to do so would be a “political hot potato”, I do not believe that the Claimant has a real prospect of showing an improper motive. Not merely did the reasoning and motives of the CPS (and, indeed, HMRC) fluctuate on this issue, proof of an improper motive would require showing that relevant officers believed that an investigation of HSBC would be likely to help the Claimant and for that reason was not pursued. That is not the state of the evidence.”
“The …fit case to be tried” is capable of being misunderstood. Lord Devlin was not of course referring to the Full Code Test which did not exist in the early 1960s. The test was, and is, sufficiency of evidence; and “fit case to be tried” is another way of making the same point.”
“trader says they still haven’t got a license and the reason given is that they owe money. But when he tries to pay money he is told he can’t because he doesn’t have a licence?” (g)8 October 2014 email from Mr Parkinson to Mr Thomas replying to the7 October 2014 email with the words “for some silly reason if a trader does not have approval they cannot pay Beer Duty and ... cannot make payments. I am going to try and get some advice from policy to see if there is a way around this, as it does not look good on us if the trader ends in court and says he tried to pay – but HMRC would not let me.” (h) 8October 2014 email from Ms Laker to Mr Parkinson and Mr Muldoon confirming that it had been agreed to give the claimants more time “to get everything in order…either myself or Alan will email you at the end of the month with an update” (i)8 October 2014 email from Mr Muldoon to Ms Laker replying to the email above, stating “At the moment I don’t intend to take any action and will wait to see how the situation develops.” (j)10 October 2014 email from Mr Muldoon to Gunther Beglane stating “I am looking to progress a criminal investigation in relation to this brewery/pub business and in the interim may take action to raise assessments and closed his brewing operation down as it is operating without a licence. We may also arrange for appropriate assessments in relation to VAT and other taxes outstanding.” (k) 22October 2014 email from Ms Laker to Mr Parkinson noting that “VAT and other regimes are in hand.”
“Can he rely on the legal advice given to him? He believes the facts and is advised that they constitute an offence. He prosecutes accordingly, but the accused is acquitted either because the advice is wrong or because the information proves to be wrong or incomplete, or because some unexpected defence is revealed. ... It appears to me that, just as the prosecutor is justified in acting on information about facts given him by reliable witnesses, so he may accept advice upon the law given him by a competent lawyer. That is the course that a reasonable man would take and, if so, the so-called objective test is satisfied. Applying this principle to the case of a police officer who lays an information and prefers a charge, and at every step acts upon competent advice, particularly perhaps if it is the advice of the legal department of Scotland Yard, I should find it difficult to say that that officer acted without reasonable and probable cause. I assume throughout that he has put all the relevant facts known to him before his advisers.”
“The exercise undertaken by the prosecutor in that context is to identify whether there is a realistic prospect of conviction which is a different, and higher, threshold than that which I must apply when considering whether there is a case fit to be tried or a proper case to lay before the court. The intensiveness of the scrutiny to be applied to the evidence is correspondingly different and greater than that relevant to the consideration of reasonable and probable cause.”
“It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution”
“We reject the proposition that the requirement of "a fit case to be tried" means that, were the case not ready to be placed before a jury the day after the charges were laid, it would not meet that test. This is not what evidential sufficiency to support the charges means. The argument betrays a profound misunderstanding of the criminal justice system. The laying of a criminal charge is the first step in a multi-stage process. For any number of reasons the prosecution case as put at the outset will evolve. It may be that, whether in response to matters raised by the defence or otherwise, the nature and focus of the prosecution case will change completely. That does not mean that the original decision to prosecute lacked reasonable and proper cause.”
“Having considered the public interest factors yet again I am in no doubt that it remains in the public interest to carry on with the current prosecution. It is the Crown's contention - supported by current evidence - that your client evaded his fiscal obligations over a prolonged period and not only robbed the public exchequer of a great deal of vital tax revenue (nearly three quarters of a million pounds). But even cheated members of staff in relation to PAYE & NI monies which were deducted from their salaries but not accounted for to the tax authorities thereby jeopardising their rights to pension and other benefits. Moreover, your client also cheated former students out of their loan repayments thereby leaving them with the burden of discharging those loans themselves while incurring interest on the unpaid amounts. There cannot be any doubt that it is in the public interest to prosecute such behaviour. The belated offer made on behalf of your client to pay the taxes which he has thus far singularly failed to pay is noted and he is, and should be, encouraged to pay the entirety of the taxes while they remain outstanding because he remains liable to pay them. This he should do as a matter of urgency. It is noted that the offer that has been made is in any event not an unconditional offer of immediate payment but is conditional on the sale of your client’s father's business which may or may not be completed and may or may not produce sufficient net sale proceeds to discharge your client’s fiscal obligations. However, the real point is that your client has chosen to evade his tax obligations in a way that has been deliberate, long running and very costly both to the state and to the individuals employed by his business there cannot be any doubt that it is in the public interest to prosecute those who commit such anti-social actions.”
"Malice, it is agreed, covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice."
“88. Mr Simblet relied upon the case of Gibbs v Rea[1998] AC 786 , a case in which the majority of the Privy Council found that malice could be inferred from the absence of evidence from the police officer who had sought the search warrant in issue. I refer to that case only for a citation in the majority opinion of the Board (given by Gault J) from the judgment of Lord Tenterden CJ in Taylor v Williams (1831) 2 B & Ad 845, 857 in which the Chief Justice had said, “Why might not the forbearance of Taylor to give evidence at the trial... raise an inference that his motive was a consciousness that he had no probable cause for instituting the prosecution.”
"…the dishonest pursuit of a case even in a "noble cause" is always malicious prosecution. It is an improper motive to act knowingly unlawfully. Pursuit of the ends of justice must mean pursuit by honest and lawful means, not just the conviction of the guilty at any cost. It is approaching perverse not to infer malice from the absence of reasonable and probable cause, particularly where Cook has failed to give any evidence as to why he had done what he did." “Why might not the forbearance of Taylor to give evidence at the trial... raise an inference that his motive was a consciousness that he had no probable cause for instituting the prosecution.” (emphasis added) "…the dishonest pursuit of a case even in a "noble cause" is always malicious prosecution. It is an improper motive to act knowingly unlawfully. Pursuit of the ends of justice must mean pursuit by honest and lawful means, not just the conviction of the guilty at any cost. It is approaching perverse not to infer malice from the absence of reasonable and probable cause, particularly where Cook has failed to give any evidence as to why he had done what he did."
“It must be the driving force behind the prosecution. In other words, it has to be shown that the prosecutor's motives is for a purpose other than bringing a person to justice: Stevens v Midland Counties Railway Company (1854) 10 Exch 352, 356 per Alderson B and Gibbs v Rea[1998] AC 786 , 797D. The wrongful motive involves an intention to manipulate or abuse the legal system Crawford Adjusters Ltd (Cayman) v Sagicor General Insurance (Cayman) Ltd[2013] UKPC 17 ,[2014] AC 366 at para 101, Gregory v Portsmouth City Council [2000] 1 AC; 426C; Proulx v Quebec[2001] 3 SCR 9 . Proving malice is a "high hurdle" for the claimant to pass: Crawford Adjusters para 72a per Lord Wilson.”
“The element of malice requires the claimant to prove that the proceedings initiated by the defendant were not a bona fide use of the court's process. While proceedings brought in the knowledge that they were without foundation may be the most obvious case, it will be sufficient if, for example, the defendant was indifferent whether the charge was supportable and brought the proceedings for an illegitimate collateral purpose: see Willers v Joyce at para 55 per Lord Toulson.”
“Malice is an additional requirement. In the early cases, such as Savile v Roberts, the courts used the expression “falso et malitiose”
“…I consider that DCS Cook's belief (as found by the judge) that the appellants were guilty of the murder cannot prevent the prosecution having been malicious. He knowingly put before the decision-maker a case which he knew was significantly tainted by his own wrongdoing and which he knew could not be properly presented in that form to a court. To find that the element of malice was not satisfied in this case, to my mind, would be, quite simply, a negation of the rule of law.”
“That it is an actionable wrong to procure the issue of a search warrant without reasonable cause and with malice has long been recognised though seldom successfully prosecuted: Elsee v. Smith (1822) 2 Chit. 304 , Hope v. Evered (1886) 17 Q.B.D. 338 , 340, Everett v. Ribbands [1952] 2 Q.B. 198 , 205, Reynolds v. Commissioner of Police of the Metropolis [1985] Q.B. 881 , 886. Generally any damage will arise from execution rather than issue of a warrant but there may be special circumstances in which it can be shown that the issue of the warrant will itself cause harm. It is the essential element of malice that distinguishes the cause of action from that of trespass where entry is made without authority or on the authority of a warrant invalid on its face. It is akin to malicious prosecution which is a well-established tort and to the less common tort of maliciously procuring an arrest: Roy v. Prior [1971] A.C. 470 . The true foundation of each is intentional abuse of the processes of the court. Malice in this context has the special meaning common to other torts and covers not only spite and ill-will but also improper motive. In the present context the requirement of improper motive would be satisfied by proof of intent to use the process of the court for granting a warrant for a purpose other than to search in the permitted circumstances.”
“It is important to keep in mind that that was a finding of lack of reasonable and probable cause based on assumed negligence or incompetence. It was not a finding that any individual crown prosecutor decided to continue the prosecution in the absence of an honest belief that there was a proper cause to do so. The finding is consistent with the existence of an honest but unreasonable belief. That is a likely conclusion in most cases where the only evidence as to the prosecutor's state of mind is the fact that he or she decided to prosecute on the basis of the facts as known; so that there is no direct evidence on that question which can be put before the jury. The fact that someone in the Crown Prosecution Service may have been negligent or incompetent in the course of reaching a decision to commence or to continue the prosecution - whether by failing to evaluate the evidence correctly at the outset, or in failing to review the evidence after committal or in the light of new material - cannot, in itself justify an inference of malice. If that is all the evidence that there is, the question of malice cannot be left to the jury. It is because, in many of these cases, that will be all the evidence there is, an attempt to dress up a claim in respect of negligence or incompetence in the guise of malicious prosecution must fail.”
“… There is no evidence that any member of the CPS ever had any other motive, and although malice is for the jury rather than the judge, it is only to be left to the jury if there is some evidence of it (per Lord Devlin at 779). Mr Denyer submitted that the issue should have been left to the jury because in some cases malice can be inferred when a prosecution is launched or continued without reasonable and probable cause. That, as it seems to me, evolves (sic) some positive evidence of mala fides on the part of the prosecutor, which is wholly absent in this case, and in any event, the reasons I have already given, Mr Denyer’s submission cannot succeed.”
“Before malice can be left to the jury there must be some evidence from which a jury properly applying its mind to the evidence would be entitled to infer it. If there is, the decision is for the jury. Evidence that the defendant lacked any reasonable and probable cause for continuing with the prosecution may of itself provide the necessary basis to enable the jury to consider malice, but this conclusion does not always follow, and it would be strange if it did. The question has to be decided in the light of the evidence in the individual case. In the present case the basis of the judge’s finding that the defendant lacked reasonable and probable cause for continuing with the prosecution suggested not malice by anyone for whom the Crown Prosecution Service could be held responsible, but an intended fault of omission. The judge concluded that there was no evidence of malice and I agree with him.”
“In Gibbs v Rea[1998] AC 786 it was common ground between the majority and the minority of the members of the Judicial Committee of the Privy Council that a claimant may rely on circumstantial evidence in support of his case on malice and the absence of reasonable and probable cause. Where they differed was on the application of this principle to the facts of that case. For the majority, who included Lord Steyn and Lord Hutton, Gault J cited a passage from the judgment of Lord Tenterden CJ in Taylor v Willans 2 B & Ad 845, 847: The motives of parties can only be ascertained by inference drawn from facts. The want of probable cause is, in some degree, a negative, and the plaintiff can only be called upon to give some …slight evidence of such want…" Gibbs v Rea turned on the significance of the decision by the defence to call no evidence at the trial, but it is a useful reminder of the fact that a claimant cannot ordinarily be expected to produce direct evidence on these matters.”
“It may be possible to infer malice. But if what is pleaded as giving rise to an inference is equally consistent with mistake or negligence, then such a pleading will be insufficient and will be liable to be struck out.”
“To say that the alleged defect in the presenting sides case was so obvious that the officer in question must have recognised it is not in my judgement a sufficient particular in the circumstance of this case.”
“In Gibbs v Rea[1998] AC 786 it was common ground between the majority and the minority of the members of the Judicial Committee of the Privy Council that a claimant may rely on circumstantial evidence in support of his case on malice and the absence of reasonable and probable cause. Where they differed was on the application of this principle to the facts of that case. For the majority, who included Lord Steyn and Lord Hutton, Gault J cited a passage from the judgment of Lord Tenterden CJ in Taylor v Willans 2 B & Ad 845, 847: “The motives of parties can only be ascertained by inference drawn from facts. want of probable cause is, in some degree, a negative, and the plaintiff can only be called upon to give some … slight evidence of such want …”
“a. Mr Muldoon and/or Ms Chipperton did not honestly believe that there was RPC to pursue the application for a search warrant. b. The evidence available to the defendant, and specifically Mr Muldoon and/or Ms Chipperton, did not provide the defendant with reasonable grounds for any belief that there was RPC to pursue the search warrant application.”
“First there is the case of targeted malice by a public officer, ie 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 in as much as the public officer does not have an honest belief that his act is lawful.”
“…the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge …is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences: Garrett v Attorney General[1977] 2 NZLR 332 , 349-350. “…there is reckless untargeted malice. The official does the act intentionally being aware that it risks directly causing loss to the plaintiff or an identifiable class to which the plaintiff belongs and the official wilfully disregards that risk. What the official is here aware of is that there is a risk of loss involved in the intended act. His recklessness arises because he chooses wilfully to disregard that risk.”
“Save as the Commissioners may otherwise allow, each application shall contain the particulars specified in Schedule 1 and shall be in such form and manner as the Commissioners may prescribe in any notice published by them in pursuance of these Regulations and not withdrawn by a further notice.”
"Robinson did not lay down any new principle of law, but three matters in particular were clarified. First, the decision explained, as Michael had previously done, that Caparo did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fall outside them. The question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. It follows that, in the ordinary run of cases, courts should apply established principles of law, rather than basing their decisions on their assessment of the requirements of public policy. Secondly, the decision re-affirmed the significance of the distinction between harming the claimant and failing to protect the claimant from harm (including harm caused by third parties), which was also emphasised in Mitchell and Michael. Thirdly, the decision confirmed, following Michael and numerous older authorities, that public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles. That is the basic premise of the consequent framework for determining the existence or non-existence of a duty of care on the part of a public authority."
“It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.”
“….Looking at the matter objectively, it was likely that Mr So and Mrs Lu would be concerned to know, and would rely upon, HSBC's representation that HSBC intended to adhere to the instructions in the LoI and had accepted those instructions. HSBC did not know whether or not they were sophisticated investors. Even if it be correct that a reasonably prudent investor would have sought advice on how the arrangements in the LoI would work in practice, there was no reason for an investor to seek advice on the truthfulness and reliability of HSBC's own representation that it had accepted the LoI and intended to comply with its terms…. the truth of the representations in the present case, being representations about HSBC's own intentions and beliefs, were uniquely within the knowledge of, and could only be verified by, HSBC itself. They were not verifiable by some independent expert….”
“It is clear that a local authority has relevant statutory duties and powers under, for example, the 1989 Act (see paras 22-33 above). It is also established law (see para 21 above), as laid down in X (Minors) v Bedfordshire CC, that, in respect of such duties and powers, there is no cause of action for the tort of breach of statutory duty even if the breach of statutory duty is a negligent breach. That does not mean that the common law tort of negligence has been excluded by statute. The statute is, in that respect, neutral. But what it does mean, as emphasised in N v Poole (see para 49 above), is that the courts must decide whether there is a duty of care at common law by applying to the public authority the same principles that would be applied if the public authority had been a private individual. See also, generally, the illuminating articles by MJ Bowman and SH Bailey, "Negligence in the Realms of Public Law - A Positive Obligation to Rescue" [1984] PL 277; SH Bailey and MJ Bowman, "Public Authority Negligence Revisited" (2000) 59 CLJ 85. It further means that one has to be very careful not to slide back to resting the duty of care, and breach, at common law on the mere fact that the public authority had statutory duties towards, and powers in respect of, the claimant. In our view, some of the submissions made by Ms Gumbel KC on behalf of HXA and YXA fell into this trap. That is, she sometimes relied on there being a statutory duty on the local authority to safeguard children in need as the very reason why there must be a duty of care owed to such children.As we have just indicated, what is required (which the courts, perhaps unhelpfully, have sometimes referred to - see paras 61(iii), 70, 72, 74, 80, 83 above - as the "something more" or "something else") is that there would have been a duty of care owed - because, for example, there is an assumption of responsibility - had the public authority been a private individual.This is not to deny that, assuming that there would otherwise be a common law duty of care owed, a particular statute may expressly or impliedly exclude that duty of care (emphasis added).”
“It is very common for the language of “assumption of responsibility” to be used at a high level of generality. However, it helps to sharpen up the analysis always to ask, what is it alleged that the defendant has assumed responsibility, to use reasonable care, to do? Although Ms Gumbel framed the assumption of responsibility in several different ways, in essence she needs to satisfy the court that there was, arguably, an assumption of responsibility, to use reasonable care, to protect HXA and/or YXA from the abuse that the local authority was aware of or ought to have known about….(emphasis added).”
"The fundamental reason ... is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else."
“38. A statutory power cannot of itself generate a common law duty of care: see East Suffolk Rivers Catchment Board v Kent[1941] AC 74 and the Gorringe case [2004]1 WLR 1057, para 41. Whether a statutory duty gives rise to a private common law cause of action is a question of construction of the statute. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for its breach. If the statute does not create a private right of action, it would be unusual, to say the least, if the mere existence of the statutory duty could generate a common law duty of care. The existence of a broad public law duty alone can scarcely give rise to a common law duty of care owed to an individual. 39. The common law should not impose a concurrent duty which is inconsistent, or may be in conflict with, the statutory framework. If the policy of the statute is not to create a statutory liability to pay compensation, the same policy should also ordinarily exclude the existence of a common law duty of care. Lord Scott put the essential principle for statutory duties as follows in the Gorringe case, at para 71: “if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty.” 40. There may be special circumstances in which a public authority has assumed an obligation to a claimant to act in a particular way. But if Parliament stops short of imposing a private law duty in favour of individuals, sufficiently compelling special circumstances are required, beyond the mere existence of the duty or power, to make it fair and reasonable to impose a duty to an individual of a scope to be derived from the special circumstances. There may be particular cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities such that they are taken to have assumed responsibility to a claimant so as to give rise to a common law duty of care.”
“The duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests. To recognise a duty of care towards victims or suspects or both, would put the CPS in positions of potential conflict, and would also open the door to collateral interlocutory civil proceedings and trials, which would not be conducive to the best operation of the criminal justice system. Similar considerations are relevant when considering the applicability of article 8 in the context of a decision to prosecute. A decision to prosecute does not of itself involve a lack of respect for the autonomy of the defendant but places the question of determining his or her guilt before the court, which will itself be responsible for deciding ancillary questions of bail or remand in custody and the like.”
“The recognition of a duty of care to those who are subject to investigation would in my view risk giving rise to clear conflicts where the interests of those subject to the investigation would point in One Direction, whereas the duty to investigate in accordance with the overarching objective would point in the other...”
“i) Applying general principles in accordance with the framework identified in Robinson , in my judgment it would be inconsistent with the statutory scheme established under the Act and the Rules to hold that the GMC owes a duty of care to a doctor subject to investigation in relation to the timing, manner and content of the communication to him of that fact. The statutory powers and duties of the GMC restrict the scope of its liability in negligence as explained in the cases of D v East Berkshire, Jain, SXH , Robinson and Poole. … iii) The pre- Robinson caselaw falls to be read in light of the developments explained in that and subsequent cases. I have examined and applied the general principles governing liability in negligence without needing to consider separately whether the existence of a duty is fair, just and reasonable, and within that context having recourse to policy considerations of the kind referred to in the older authorities…. iv) Had it been necessary to give effect to policy considerations (as described by Lord Reed, or by affording such considerations a more centrally dominant role as Lord Hughes did in Robinson at [118]), I would have attached significant weight to those identified in cases such as Elguzouli-Daf and Brooks. Those considerations seem to me to apply just as much to a regulator in the position of the GMC as they do to the police and the CPS. Imposing a duty of care would in my judgment have a similarly chilling and diverting effect on the GMC's task of investigating fitness to practise in order to protect the public….As Lord Hughes observed in Robinson at [112] the Court can give effect to policy considerations where the consequences of defensive behaviour can scarcely be doubted; that in my view is the position here….”
“… this line of authority demonstrates, in my opinion, that where action is taken by a state authority under statutory powers designed for the benefit or protection of particular class of persons, a tortious duty of care will not be held to be owed by the state authority to others whose interests may be adversely affected by an exercise of the statutory power. The reason is that the imposition of such duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of the statutory purpose.”
“67. The effect, in this Court, is that we must approach this appeal on the basis that Mr Harrison was wrong to tell Mr Martin, in June 1999, that the company's application for a tax certificate could not be accepted unless supported by the company's own accounts. The question which we have to consider is whether Mr Harrison assumed a responsibility to give Mr Martin, on behalf of the company, information which was correct. In my view the judge was right to hold that Mr Harrison did not assume a responsibility in that respect. It must be kept in mind that it was for the company to decide the basis upon which it would make an application under section 561(2) ICTA; and it was for the company to make that application in the manner (and in the form) prescribed by the Regulations. It was not for individual officers of the Revenue to tell applicants what had to be done: and there is nothing in the facts found by the judge to suggest that Mr Martin (or the company) thought that it was. They had consulted their own accountant; and, on the basis of his advice, they did not accept that the information which Mr Harrison had given was correct. 68. The real complaint, in this context, is that in June 1999 Mr Harrison refused to accept an application which was not supported by the company's own accounts. But the remedy in respect of that refusal lay in the company's hands. It could have sought an order (in judicial review proceedings) requiring the Revenue to accept its application. Or it might have sought to treat the refusal to accept the application as a refusal to issue a certificate; and appealed from that refusal under section 561(9) ICTA. 69. As I have said, it was for the company to make its application for a tax certificate in the manner (and in the form) prescribed by the Regulations. That, as it seems to me, provides the answer to the question whether it would be fair, just and reasonable to impose a duty of care on Mr Harrison in relation to the lack of a signature on the July forms at the time when those forms were left with him on20 July 1999 . We have copies of those forms in the documents supplied to us. The CIS3 form (Company Application Form) contains (on its face) the printed instruction: "To apply for a Certificate, read CIS3 Booklets A and B and then complete all of this form". The form provides for a declaration by the company secretary that he or she is applying for the company to hold a CIS6 tax certificate; and there is a box for his or her signature. The CIS8 form (Application Form for a Director or Company Secretary) contains the printed instruction: "If you want to apply for a Subcontractors Tax Certificate, fill in the rest of this page, sign the declaration at 3 overleaf . . .". Again, there is a box for the applicant's signature. In those circumstances Mr Martin could have been in no doubt that the forms required his signature. If an application was to be made on behalf of the company, it was his responsibility to ensure that the forms were signed. Although it was plainly sensible for the Revenue's internal procedures to make provision for its officer to check, when the application forms were lodged, that they had been signed, there is no basis for the imposition of a duty of care. In my view the judge was correct to hold that no duty arose in relation to Mr Harrison's failure to notice, on20 July 1999 , that the forms were unsigned.”
“…Mr Bowen cited the many judicial statements urging caution before striking out a claim in an area of law which is uncertain and developing, and emphasising the desirability that any further development of the law should be on the basis of actual and not hypothetical facts: see eg X (Minors) v Bedfordshire County Council[1995] 2 AC 633 , 740-741; Barrett v Enfield London Borough Council[2001] 2 AC 550 , 557; Waters v Comr of Police of the Metropolis[2000] 1 WLR 1607 , 1613-1614. In the last of these passages Lord Slynn of Hadley described the law of negligence in relation to public authorities as such a developing area. That was a fair description when these cases were decided. But it is not true now. The law has since been settled by successive decisions of this court, particularly the seminal decisions in Michael and Robinson outlined earlier in this judgment. We agree with the Court of Appeal that the applicable law is clear and not in a state of flux. When it is clear, as it is here, that on the facts alleged taken at their highest no duty of care was owed, it would be unjust and a waste of resources to allow the claim to proceed to a trial.”
“The liquidation of LFCP and the financial losses claimed herein were caused by the said malicious, misfeasant and negligent acts which brought about the destruction of a thriving and fast growing brewing business which, had it not been destroyed by the defendant’s acts and omissions would have continued to be profitable and been valued in today's market at a figure in the region of£50 million and or would have been subsequently taken over/sold by a large brewing business.”
“The procedure is entirely inappropriate where the plaintiff's entitlement to recover any sum is the subject of any serious dispute, whether of law or fact. This is not to say in either case that a defendant with no or no more than a partial defence can cheat a plaintiff of his just deserts by producing hefty affidavits and voluminous exhibits to create an illusion of complexity where none exists. Where the point at issue is at heart a short one the court will recognise the fact and act accordingly no matter how bulky its outer garments. But it does mean that were there are substantial issues of genuine complexity the parties should prepare for trial (perhaps, as here, with trial of preliminary issues) rather than dissipate their energy and resources on deceptively attractive shortcuts.”