“12. The Claimant is a data subject within the meaning of Article 4(1) of the UK General Data Protection Regulation (“UK GDPR”). 13. The Claimant’s name and all information about him contained in the Publications constitutes his personal data within the meaning of Article 4(1) UK GDPR. In addition, the alleged commission of offences by the Claimant is criminal offence data within the meaning ofsection 11(2) of the Data Protection Act 2018 (“DPA 2018”) – accordingly, the criminal offence data includes the information of the Claimant’s arrest by Surrey Police officers and the related criminal investigation. 14. The First and Fourth Defendant waswere and isarea data controllers and/or a processors within the meaning of the UK GDPR in respect of personal data processed through the Publications. By her own actions in recording, storing, publishing and disseminating the Publications relating to the Claimant, the First and Fourth Defendant hashave processed, and continues to process, the Claimant’s personal data and/or has been, and continues to be, the data controller in respect of such processing. Paragraphs 5 and 8 are repeated. 15. The processing of the Claimant’s personal data was in breach of Article 5 of the UK GDPR. The First and Fourth Defendants processed and/or was responsible as a data controller for the processing of the Claimant’s personal data unfairly and/or unlawfully in contravention of Article 5(1)(a), (d) and (e) and Article 10 of the UK GDPR. In so doing, the First and Fourth Defendants infringed the Claimant’s rights as a data subject under the UK GDPR. The Claimant will rely on the following facts and matters in this regard: PARTICULARS OF BREACH 15.1. In breach of Article 5(1)(a) of the UK GDPR, the processing was unlawful in that it had no lawful basis under Article 6. The Claimant did not consent to the processing and it did not satisfy any of the requirements of Article 6(1)(b) to (f). The processing did not serve any legitimate interest for the purpose of Article 6(1)(f): there is no public and/or legitimate interest in falsely accusing the Claimant of threatening, stalking and/or harassing conduct (of the criminal standard or otherwise) towards women and children. Alternatively, if the processing of the Claimant’s personal data was necessary for the purposes of the First and Fourth Defendant’s legitimate interests (which is denied), any such interest was overridden by the Claimant’s fundamental right to respect of his private life within the meaning of Article 6(1)(f). The processing of his data adversely affected the Claimant’s reputation which forms part of his personal identity and psychological integrity. Further, and in any event, the Claimant had a reasonable expectation of privacy in relation to his arrest and the criminal investigation into the First Defendant’s complaint against him by Surrey Police officers. 15.2. In breach of Article 5(1)(d), the processing was inaccurate. Paragraphs 9 to 10 are repeated. In particular, the Claimant’s personal data was inaccurate and misleading as to the following matters of fact: (a) The Claimant has not engaged in any threatening, stalking and/or harassing conduct (of the criminal standard or otherwise) towards the First Defendant or, for the avoidance of doubt, towards any other person. (b) The Claimant has not sent malicious communications (of the criminal standard or otherwise) to the First Defendant or, for the avoidance of doubt, to any other person. (c) The Claimant has not (and has never) committed and/or been charged with a criminal offence. To the contrary, he is of good character and of previously unblemished reputation. To date, the First and Fourth Defendants has have failed to take (any) reasonable steps to ensure the accuracy of the Claimant’s personal data at any point before or during the publication of the Video and Emails. 15.3. In breach of Article 5(1)(e) of the UK GDPR, the Claimant’s personal data has been unlawfully retained and stored. The First and Fourth Defendant’s processing of the Claimant’s personal data never served a lawful or legitimate purpose and, accordingly, no period of retention or storage was necessary. The third sentence of paragraph 15.1 is repeated. 15.4. In breach of Article 10 of the UK GDPR, the processing of the criminal offence data was not carried out under the control of official authority and was unlawful the Claimant having satisfied none of the conditions contained in Parts 1 to 3 of Schedule 1 to the DPA 2018. 16. In a letter dated6 June 2024 to the First Defendant, the Claimant objected to the processing of his personal data in the Publications. The letter explained that there was no lawful basis for the processing of the Claimant’s personal data. The Claimant requested that his data was either erased pursuant to Article 17 of the UK GDPR or, alternatively, rectified under Article 16 of the UK GDPR or, in the further alternative, restricted pursuant to Article 18 of the UK GDPR. This request was ignored by the First Defendant and the continued publication of the Video was in breach of the Claimant’s rights under Articles 16 and/or 17 and/or 18 and/or 21 of the UK GDPR.”
“17. The Defendants unlawfully conspired and/or caused and/or procured the Claimant’s arrest by Surrey Police officers at 00:02hrs on8 March 2024 and his subsequent detention at Staines Custody Centre for a period of 18 hours and 47 minutes and they are each jointly and severally liable: PARTICULARS OF FALSE IMPRISONMENT 17.1. The Defendants invented and gave false information to Surrey Police officers that (a) the Claimant had sent her numerous unwanted emails containing Blog articles, (b) the Claimant’s conduct involved a “hate element” (relating to sexual orientation and/or disability), (c) the First Defendant had emailed to ask for the contact to cease; and (d) the Claimant had followed the First Defendant in person and put her in fear of violence in St Michael’s on Wyre on27 January 2024 . 17.2. In so doing, the First Defendant complained of serious criminal misconduct, namely harassment and stalking involving fear of violence (Protection fromHarassment Act 1997 ). She thereby imposed a duty on officers of Surrey Police to act; and caused the false arrest and subsequent unlawful detention of the Claimant. 17.3. The Defendants waswere the sole reason, jointly or severally, for the Claimant’s arrest and detention on suspicion of serious criminal misconduct: (a) Paragraph 15.2(c) is repeated. The Claimant has never been arrested nor attended a voluntary police interview prior to8 March 2024 . (b) No other alleged offences were put to the Claimant during the entirety of his detention by Surrey Police officers. (c) The two Surrey Police officers who interviewed the Claimant between 14.07hrs and 15.21hrs did not produce any evidence to substantiate and/or corroborate the First Defendant’s false complaint. The inescapable inference is that Surrey Police officers conducted no real investigation into the First Defendant’s complaint prior to his arrest and detention, but instead relied on the Defendant’s word. 17.4. On19 April 2024 Sergeant Crane of Surrey Police decided to take no further action against the Claimant due to the evidence not meeting the evidential stage of the full code test set out in the Code for Crown Prosecutors.”
“17.5. In the alternative, the Defendants unlawfully conspired with each other by agreement with the predominant purpose of causing the Claimant damage i.e. by him being arrested and detained. In furtherance of the agreement to cause the Claimant damage the Defendants took concerted action pursuant to the agreement and achieved that aim. 17.6. For the avoidance of doubt, filing reports to the Police that are demonstrably false in addition to supporting such reports by way of witness statements and/or other evidence was and is an unlawful action taken by the Defendants or in the alternative an unlawful action taken by the First Defendant with the agreement of the Second, Third and Fourth Defendants. 17.7. The Defendants’ predominant purpose was to cause the Claimant damage and/or injure him. In the alternative the Defendants reasonably should have known that such concerted actions would cause the Claimant damage and/or injury and therefore they had a constructive intent. 17.8. The damage caused by the Defendants’ unlawful conspiracy, which was within their reasonable anticipation, is detailed at paragraphs 18.2 to 18.5 below.”
“(1) This rule applies where a party is to be added or substituted... (2) The court may order a person to be added as a new party if – (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue. ... (4) The court may order a new party to be substituted for an existing one if – (a) the existing party’s interest or liability has passed to the new party; (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.” (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue. (a) the existing party’s interest or liability has passed to the new party; (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.”
“(1) In Biguzzi v Rank Leicester Plc[1999] 1 WLR 1926 at 1932-1933 per Lord Woolf MR, the Court of Appeal referred to strike out as a ‘draconian’ step: the striking out of a valid claim should only be taken as a last resort. (2) In a strike out application the proportionality of the sanction is very much in issue: see Walsham Chalet Park Ltd v Tallington Lakes Ltd[2014] EWCA Civ 1607 at [44]. (3) If the Court is able to say that a case is ‘unwinnable’ such that the continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides it may be struck out: see Harris v Bolt Burdon [2000] C.P. Rep 70, [2000] C.P.L.R. at [27]. (4) An application to strike out the claim should not be granted where there are significant disputes of fact between the parties going to the existence and scope of an alleged duty of care unless the court is ‘certain’ (emphasis in original) that the claim is bound to fail: see Hughes v Colin Richards & Co[2004] EWCA 266 ; [2004] P.N.L.R. 35 at [22]. (5) Where ‘the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition), or is in any way sensitive to the facts, an order to strike out should not be made’: per Sir Thomas Bingham in E (A Minor) v Dorset CC[1995] 2 AC 633 at 694B. (6) It is not appropriate to strike out a claim in an area of developing jurisprudence since, in such areas, decisions as to novel points of law should be based on actual findings of fact: see Farah v British Airways, The Times,26 January 2000 , CA at [42] referring to Barrett v Enfield BC[2001] AC 550 (see 557) and X (Minors) v Bedfordshire County Council[1995] 2 AC 633 at page 741. (7) A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence: see Bridgeman v McAlpine-Brown19 January 2000 , unrep. (CA) at [24].”
“140. Permission to amend a Statement of Case can be granted by the Court pursuant toCPR 17.3 . The key principles guiding the exercise of this power are: (1) The threshold test for permission to amend is the same as that applied in summary judgment applications: Elite Property Holdings Ltd -v- Barclays Bank plc[2019] EWCA Civ 204 [40]-[42] per Asplin LJ (“the merits test”). (2) Amendments sought to be made to a statement of case must contain sufficient detail to enable the other party and the Court to understand the case that is being advanced, and they must disclose reasonable grounds upon which to bring or defend the claim: Habibsons Bank Ltd -v- Standard Chartered Bank (HK) Ltd[2011] QB 943 [12] per Moore-Bick LJ. (3) The court is entitled to reject a version of the facts which is implausible, self-contradictory, or not supported by the contemporaneous documents. It is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action or defence relied upon: Elite Property Holdings Ltd [42] per Asplin LJ. (4) In addition to being coherent and properly particularised, the pleading must be supported by evidence which establishes a proper factual basis which meets the merits test: Zu Sayn-Wittgenstein -v- Borbón y Borbón[2023] 1 WLR 1162 [65] per Simler LJ. (5) In an area of law which is developing, and where its boundaries are drawn incrementally based on decided cases, it is not normally appropriate summarily to dispose of the claim or defence. In such areas, development of the law should proceed on the basis of actual facts found at trial and not on the basis of hypothetical facts assumed to be true on an application to strike out: Farah -v- British Airways plc[1999] EWCA Civ 3052 [42]-[43] per Chadwick LJ. 141. As the merits test for granting amendments is the same as that for summary judgment, it is necessary to identify some of the key principles that apply in that area. 142. The, now familiar, principles governing summary judgment were summarised in Easyair Ltd -v- Opal Telecom Ltd[2009] EWHC 339 (Ch) [15] per Lewison J (and approved by the Court of Appeal in AC Ward & Sons Ltd -v- Catlin (Five) Ltd[2009] EWCA Civ 1098 ). Drawing upon other relevant authorities the following can be stated: (1) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain -v- Hillman[2001] 1 All ER 91 . The criterion is not one of probability; it is absence of reality: Three Rivers DC -v- Bank of England (No.3)[2003] 2 AC 1 [158] per Lord Hobhouse. (2) 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 [8] (3) In reaching its conclusion the court must not conduct a “mini-trial”: Swain -v- Hillman. 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 [10]; Optaglio -v- Tethal[2015] EWCA Civ 1002 [31] per Floyd LJ. (4) 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 ; Doncaster Pharmaceuticals Group Ltd -v- Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 . (5) Nevertheless, to satisfy the requirement that further evidence ‘can reasonably be expected’ to be available at trial, there needs to be some reason for expecting that evidence in support of the relevant case will, or at least reasonably might, be available at trial. It is not enough simply to argue that the case should be allowed to go to trial because something may ‘turn up’. A party resisting an application for summary judgment must put forward sufficient evidence to satisfy the court that s/he has a real prospect of succeeding at trial (especially if that evidence is, or can be expected to be, already within his/her possession). If the party wishes to rely on the likelihood that further evidence will be available at that stage, s/he must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up: ICI Chemicals & Polymers Ltd -v- TTE Training Ltd[2007] EWCA Civ 725 [14] per Moore-Bick LJ; Korea National Insurance Corporation -v- Allianz Global Corporate & Speciality AG [2008] Lloyd’s Rep IR 413 [14] per Moore-Bick LJ; and Ashraf -v- Lester Dominic Solicitors & Ors[2023] EWCA Civ 4 [40] per Nugee LJ. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi -v- Royal Dutch Shell Plc[2021] 1 WLR 1294 [128] per Lord Hamblen. (6) Lord Briggs explained the nature of the dilemma in Lungowe -v- Vedanta Resources plc[2020] AC 1045 [45]: ‘… On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…” (7) The Court may, after taking into account the possibility of further evidence being available at trial, and without conducting a ‘mini-trial’, still evaluate the evidence before it and, in an appropriate case, conclude that it should “draw a line” and bring an end to the action: King -v- Stiefel[2021] EWHC 1045 (Comm) [21] per Cockerill J.” (1) The threshold test for permission to amend is the same as that applied in summary judgment applications: Elite Property Holdings Ltd -v- Barclays Bank plc[2019] EWCA Civ 204 [40]-[42] per Asplin LJ (“the merits test”). (2) Amendments sought to be made to a statement of case must contain sufficient detail to enable the other party and the Court to understand the case that is being advanced, and they must disclose reasonable grounds upon which to bring or defend the claim: Habibsons Bank Ltd -v- Standard Chartered Bank (HK) Ltd[2011] QB 943 [12] per Moore-Bick LJ. (3) The court is entitled to reject a version of the facts which is implausible, self-contradictory, or not supported by the contemporaneous documents. It is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action or defence relied upon: Elite Property Holdings Ltd [42] per Asplin LJ. (4) In addition to being coherent and properly particularised, the pleading must be supported by evidence which establishes a proper factual basis which meets the merits test: Zu Sayn-Wittgenstein -v- Borbón y Borbón[2023] 1 WLR 1162 [65] per Simler LJ. (5) In an area of law which is developing, and where its boundaries are drawn incrementally based on decided cases, it is not normally appropriate summarily to dispose of the claim or defence. In such areas, development of the law should proceed on the basis of actual facts found at trial and not on the basis of hypothetical facts assumed to be true on an application to strike out: Farah -v- British Airways plc[1999] EWCA Civ 3052 [42]-[43] per Chadwick LJ. (1) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain -v- Hillman[2001] 1 All ER 91 . The criterion is not one of probability; it is absence of reality: Three Rivers DC -v- Bank of England (No.3)[2003] 2 AC 1 [158] per Lord Hobhouse. (2) 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 [8] (3) In reaching its conclusion the court must not conduct a “mini-trial”: Swain -v- Hillman. 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 [10]; Optaglio -v- Tethal[2015] EWCA Civ 1002 [31] per Floyd LJ. (4) 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 ; Doncaster Pharmaceuticals Group Ltd -v- Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 . (5) Nevertheless, to satisfy the requirement that further evidence ‘can reasonably be expected’ to be available at trial, there needs to be some reason for expecting that evidence in support of the relevant case will, or at least reasonably might, be available at trial. It is not enough simply to argue that the case should be allowed to go to trial because something may ‘turn up’. A party resisting an application for summary judgment must put forward sufficient evidence to satisfy the court that s/he has a real prospect of succeeding at trial (especially if that evidence is, or can be expected to be, already within his/her possession). If the party wishes to rely on the likelihood that further evidence will be available at that stage, s/he must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up: ICI Chemicals & Polymers Ltd -v- TTE Training Ltd[2007] EWCA Civ 725 [14] per Moore-Bick LJ; Korea National Insurance Corporation -v- Allianz Global Corporate & Speciality AG [2008] Lloyd’s Rep IR 413 [14] per Moore-Bick LJ; and Ashraf -v- Lester Dominic Solicitors & Ors[2023] EWCA Civ 4 [40] per Nugee LJ. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi -v- Royal Dutch Shell Plc[2021] 1 WLR 1294 [128] per Lord Hamblen. (6) Lord Briggs explained the nature of the dilemma in Lungowe -v- Vedanta Resources plc[2020] AC 1045 [45]: ‘… On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…” (7) The Court may, after taking into account the possibility of further evidence being available at trial, and without conducting a ‘mini-trial’, still evaluate the evidence before it and, in an appropriate case, conclude that it should “draw a line” and bring an end to the action: King -v- Stiefel[2021] EWHC 1045 (Comm) [21] per Cockerill J.”
“30. I take the following principles from Ivy Technology -v- Martin[2019] EWHC 2510 (Comm) per Andrew Henshaw QC: ‘[12] Conspiracy to injure must be pleaded to a high standard, particularly where the allegations include dishonesty: (i) Allegations of conspiracy to injure “must be clearly pleaded and clearly proved by convincing evidence” (Jarman & Platt Ltd -v- I Barget Ltd[1977] FSR 260 , 267). (ii) The more serious the allegations made, the more important it is for the case to be set out clearly and with adequate particularity: Secretary of State for Trade and Industry -v- Swan[2003] EWHC 1780 (Ch) [22]-[24];CPR PD 16 §8.2 in respect of the obligations on a party pleading dishonesty; Mullarkey -v- Broad[2007] EWHC 3400 (Ch) ;[2008] 1 BCLC 638 [40]-[47] on the burden and standard of proof for such claims and reiterating the well-established principle that an allegation of dishonesty must be pleaded clearly and with particularity (citing Belmont Finance Corp -v- Williams Furniture[1979] Ch 250 , 268). (iii) Unlawful means conspiracy is a grave allegation, which ought not to be lightly made, and like fraud must be clearly pleaded and requires a high standard of proof: CEF Holdings -v- Mundey[2012] EWHC 1534 (QB) ;[2012] IRLR 912 [74]. (iv) Where a conspiracy claim alleges dishonesty, then “all the strictures that apply to pleading fraud” are directly engaged, i.e. it is necessary to plead all the specific facts and circumstances supporting the inference of dishonesty by the defendants: ED&F Man Sugar -v- T&L Sugars[2016] EWHC 272 (Comm) . (v) As to the substantive elements of the tort: ‘To establish liability for assisting another person in the commission of a tort [common design], it is necessary to show that the defendant (i) acted in a way which furthered the commission of the tort by the other person and (ii) did so in pursuance of a common design to do, or secure the doing of, the acts which constituted the tort… The elements of this tort [conspiracy] are a combination or agreement between the defendant and another person pursuant to which unlawful action is taken which causes loss or damage to the claimant and is intended or expected by the defendant to do so (whether or not this was the defendant’s predominant purpose).” (Marathon Asset Management LLP -v- Seddon[2017] IRLR503 [132] and [135]).’ 31. As to the requirements of pleading fraud or other discreditable conduct, the approach was set out in Portland Stone Firms Limited -v- Barclays Bank[2018] EWHC 2341 (QB) per Stuart-Smith J: ‘[25] Where, as here, a Claimant wishes to amend to plead fraud and the application is opposed, it is material to bear in mind the approach that the Court routinely takes to proving fraud in civil litigation. A sufficient summary for present purposes is provided by Fiona Trust & Holding Corp v Privalov[2010] EWHC 3199 (Comm) [1438]-[1439] per Andrew Smith J: ‘It is well established that “cogent evidence is required to justify a finding of fraud or other discreditable conduct”: per Moore-Bick LJ in Jafari-Fini -v- Skillglass Ltd[2007] EWCA Civ 261 [73]. This principle reflects the court’s conventional perception that it is generally not likely that people will engage in such conduct: “where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger”, per Rix LJ in Markel -v- Higgins[2009] EWCA 790 [50]. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow’s Will Trusts[1964] 1 WLR 415 , 455 (cited by Lord Nicholls in In re H[1996] AC 563 , 586H), “The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”… …Thus in the Jafari-Fini [49], Carnwath LJ recognised an obvious qualification to the application of the principle, and said, “Unless it is dealing with known fraudsters, the court should start from a strong presumption that the innocent explanation is more likely to be correct.”’ [26] This summary is consistent with many other decisions of high authority which establish that pleadings of fraud should be subjected to close scrutiny and that it is not possible to infer dishonesty from facts that are equally consistent with honesty: see, for example, Mukhtar -v- Saleem[2018] EWHC 1729 (QB) ; Elite Property Holdings Ltd -v- Barclays Bank[2017] EWHC 2030 (QB) ; Three Rivers DC -v- The Governor and Company of Barclays of England (No.3)[2003] 2 AC 1 [186] per Lord Millett... [27] One of the features of claims involving fraud or deceit is the prospect that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy. This has routinely been addressed in cases involving allegations that a defendant has engaged in anti-competitive arrangements. In such cases, the Court adopts what is called a generous approach to pleadings. The approach was summarised by Flaux J in Bord Na Mona Horticultural Ltd & Anr -v- British Polythene Industries Plc[2012] EWHC 3346 (Comm) [29]ff. Flaux J set out the principles in play as described by Sales J in Nokia Corporation -v- AU Optronics Corporation[2012] EWHC 731 (Ch) [62]-[67], which included the existence of a tension between (a) the impulse to ensure that claims are fully and clearly pleaded, and (b) the impulse to ensure that justice is done and a claimant is not prevented by overly strict and demanding rules of pleading from introducing a claim which may prove to be properly made out at trial but may be shut out by the law of limitation if the claimant is to be forced to wait until he has full particulars before launching a claim. Sales J indicated that this tension was to be resolved by “allowing a measure of generosity in favour of a claimant.”
“...the essential test that is applied is the same, namely whether the defendant gave the information to a prosecuting authority so that what followed was the result of that prosecuting authority or whether the defendants themselves were responsible for the acts that followed. .... Accordingly, as it would seem to me, the question which arose for the decision of the learned judge in this case was whether there was information properly to be considered by the jury as to whether what [the store detective] did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request or direct encouragement that they should act by way of arresting these defendants. He decided that there was no evidence which went beyond the giving of information. Certainly there was no express request. Certainly there was no encouragement. Certainly there was no discussion of any kind as to what action the police officers should take. ... The fact remains that the learned judge to my mind quite correctly held that what [the store detective] did and said no way went beyond the mere giving of information, leaving it to the officers to exercise a discretion which on their unchallenged evidence they did as to whether they should take any action or not.” (Emphasis added.)
“141. The passages I have cited above might be taken to suggest that there must be some act or some words amounting to a demand, a request, or an urging of the police to take action...But that is not how I read these decisions. The law is put in this way in Clerk & Lindsell on Torts, 21 ed (2014), para 15-43 ‘It is not necessary that he should have in terms have made a request or demand it is enough if he makes a charge on which it becomes the duty of the constable to act’. That addresses the issue as one of substance not just form and, in my judgment it is the better view. And on that view the defendant is clearly responsible; she placed the police in a position where it was their duty to act as they did. 142. But even on the narrower view the defendant would in my judgment be liable. It cannot be necessary for this purpose that the defendant should use words such as ‘please arrest him, officer’. That would be too formalistic. But in substance, that is in my judgment the request made by the defendant...Her report went well beyond merely laying information before the police, for them to do as they saw fit. Looked at realistically, in its context and against the background of previous complaints by the defendant, the report must be viewed as urging the police to arrest the claimant; it amounted to an emotionally charged and, on its face, compelling plea for action to be taken. It was in substance a direct act of encouragement and procurement of the arrest and of what followed.”
“32. ...The point is that while malice is not a necessary element of the tort of false imprisonment, if a person deliberately invents a very serious false allegation to which they say they are a witness and which the police would be in no position to check and puts that allegation to the police so that the police officer’s discretion is effectively removed, therefore procuring the claimant’s arrest, that person commits the tort because in those circumstances they are responsible for the arrest. Such a person has gone beyond laying information before police officers for them to act as they saw fit. On the other hand a person who merely gives information in good faith albeit mistakenly does not commit the tort. To be liable they have to go beyond that by directing, requesting or directly encouraging the officers to arrest the claimant...”
“35. The submission on the appeal before me is that this wider principle means that if a defendant acting without bad faith merely gives information to the police which is in fact mistaken, one cannot say whether or not the defendant is liable without deciding whether the police felt compelled to act as a result of what they were told or whether the police took responsibility for their decision to arrest the claimant, as the police officers did in Davidson. I do not believe that is the law nor do I believe such a principle can be derived from Barkhuysen given its very different facts... 36. In my judgment the distinction between merely providing information, and going beyond that to establish liability, at least in part, arises from the nature of this type of claim and liability. The essential test is whether what the defendant did had the effect of turning the police into their agent or as someone whom the defendant procured to act as they did. A defendant who merely provides information to the police in good faith is not procuring the claimant’s arrest even it if is practically inevitable that an arrest will follow. If the passage cited from Clerk & Lindsell which is referred to in paragraph 141 of Barkhuysen means something different then I disagree with it but I do not believe that is what the authors were saying...The sentence is followed by the words: ‘But it is a quite different thing is a party simply gives information, and the constable thereupon acts according to his own judgment. In such a case the informer incurs no responsibility for the tort of false imprisonment. The critical test is whether the defendant was responsible for the claimant’s arrest by directing or requesting or directly encouraging the officers to arrest the claimant; and in that respect did they go beyond laying information before police officers for them to take such as they saw fit.’” ‘But it is a quite different thing is a party simply gives information, and the constable thereupon acts according to his own judgment. In such a case the informer incurs no responsibility for the tort of false imprisonment. The critical test is whether the defendant was responsible for the claimant’s arrest by directing or requesting or directly encouraging the officers to arrest the claimant; and in that respect did they go beyond laying information before police officers for them to take such as they saw fit.’”
“57. I bear well in mind the comments of judges, some of which I have already quoted, that the scope of the immunity rule must be limited to that which is necessary in the interests of the administration of justice...However, it does seem to me that....both principle and policy support the distinction I have drawn, between, on the one had, a case where what is complained of is or involves the invocation of the process of the court, where a claim for, or akin to, malicious prosecution may be brought against the person who invoked the court process, and where the witness immunity rule does not prevent the claim being brought...and, on the other hand, a claim in circumstances where no court proceedings have taken place, so that no issue arises of a claim based on the malicious abuse of the process of the court. In such a case I see no reason to make an exception from the normal scope of the witness immunity rule. It would preclude a claim in defamation; it should also, in my judgment, preclude a claim of the kind brought by the claimant in the present case. The policy behind the witness immunity rule is the same in relation to the present claim as it would be as regards a defamation claim, and the case does not have the feature of abuse of the process of the court, which because no claim can be made against the court, justifies the possibility of a separate claim for the malicious abuse of the court’s process, which should be possible despite the witness immunity rule.”