Coghlan v Chief Constable of Manchester Greater Police & Ors (Rev 1) [2018] EWHC 1784 (QB)

[2018] EWHC 1784 (QB)Case No D90MA146/D90MA175
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRYDate 12/07/2018
(sitting at Liverpool District Registry)
Liverpool Civil Justice Centre
35 Vernon Street, Liverpool, L2 2BX
Before
MRS JUSTICE YIP DBE
Between
AARAN CHARLTON COGHLANClaimant(1) CHIEF CONSTABLE OF GREATER MANCHESTER POLICEDefendants(2) DIRECTOR GENERAL OF THE NATIONAL CRIME AGENCYDefendant(3) DIRECTOR OF PUBLIC PROSECUTIONS FOR THE CROWN PROSECUTION SERVICEDefendant
In the matter of D90MA146
Mr Nick Stanage (instructed through The Bar public access scheme) for Mr CoghlanFiona Barton QC (instructed by Legal Services, Greater Manchester Police) for Chief Constable of Greater Manchester PoliceJeremy Johnson QC (instructed by Weightmans LLP) for Director General of the National Crime AgencyJonathan Kinnear QC & Rupert Jones (instructed by The Government Legal Department) for Director of Public Prosecutions for the Crown Prosecution Service
In the matter of D90MA175
Between
AARAN CHARLTON COGHLANClaimant(2) CHIEF CONSTABLE OF MANCHESTER GREATER POLICEDefendants(2) DIRECTOR OF PUBLIC PROSECUTIONS FOR THE CROWN PROSECUTION SERVICEDefendant
Mr Stanage (instructed through The Bar public access scheme) for Mr CoghlanFiona Barton QC (instructed by Legal Services, Greater Manchester Police) for Chief Constable of Greater Manchester PoliceJonathan Kinnear QC & Rupert Jones (instructed by The Government Legal Department) for Director of Public Prosecutions for the Crown Prosecution ServiceHearing Hearing dates: 23 & 24 May 2018
Judgment ApprovedMrs Justice Yip :
[1]This judgment deals with applications made in two sets of proceedings brought by Mr Coghlan against the police and Crown Prosecution Service.[2]The first case (D90MA146) relates to Mr Coghlan’s prosecution for conspiracy to supply class A drugs (cocaine) between 1 June 2009 and 14 April 2010, referred to as “Operation Confection”. Mr Coghlan was arrested on 11September 2010. The criminal proceedings came to an end on 8 June 2011, when the prosecution offered no evidence. A claim form was issued on 8 June 2017 against the Chief Constable of Greater Manchester Police; the Director General of the National Crime Agency and the Director of Public Prosecutions, claiming damages for false imprisonment; malicious prosecution and misfeasance in a public office. The Particulars of Claim were served on 5 October 2017. I shall refer to this as “the Operation Confection claim”.[3]The second case (D90MA175) relates to a charge of assault occasioning actual bodily harm arising out of events on 18 August 2008. Mr Coghlan was charged with that offence on 22 October 2008. That prosecution came to an end when the Crown offered no evidence on public interest grounds on 15 July 2011. The claim form was issued on 14 July 2017 against the Chief Constable of Greater Manchester Police and the Director of Public Prosecutions. Particulars of Claim were served on 13 November 2017. I shall refer to this as “the ABH claim”.[4]In February 2018, each defendant made applications in each case for the summary disposal of the claims, by way of striking out pursuant to CPR 3.4 and/or summary judgment under CPR 24.2. In March 2018, those applications were listed for hearing on 23 and 24May 2018.[5]On 11 May 2018, Mr Coghlan made an application for an order that “the Court appoints Special Counsel” and that “the Defendants’ applications be adjourned generally pending the completion of the review of disclosure by Special Counsel”.[6]I heard all the applications together, on the basis that if I concluded that it was appropriate for Special Counsel to be appointed and to be involved in a review of disclosure prior to determination of the defendants’ applications, I would then adjourn those applications before ruling on them.[7]Mr Coghlan was represented at the hearing by Mr Stanage of Counsel, who was instructed on a direct access basis. I recognise that he did his best to assist the court while vigorously pursuing his client’s position. This was not an easy task. He had been instructed at short notice and came to the case afresh. He also had to deal with several interventions from Mr Coghlan with additional instructions being given during the hearing. I allowed a significant amount of time for Mr Stanage and Mr Coghlan to confer. Some would say I was too indulgent. Certainly, I believe that the claimant was given every opportunity to “put his case in order”. I am grateful to Leading Counsel who appeared for the defendants for their well-focused submissions and pragmatism in dealing with the hearing so that it could still be concluded within the time estimate.[8]I also record that some concerns were raised by the claimant about delays in papers reaching me before the hearing. As I indicated to the parties, there was no difficulty at all with the papers in the end. I had been able to pre-read sufficiently and was afforded ample time to read everything during adjournments.[9]The claimant’s position was not entirely clear until the afternoon of the second day of the hearing when a number of further documents were produced. Through Mr Stanage, he conceded that the Operation Confection claim could not proceed on the basis of the case currently pleaded in the Particulars of Claim. That concession was not made in relation to the ABH claim. The claimant maintained his request for the defendants’ applications to be adjourned. The basis on which the court was invited to adjourn was reduced to writing in an email timed at 14.22. This included seeking orders for the following:(i) Permission to substitute “The National Crime Agency” for “The Director General of the National Crime Agency” as second defendant in the Operation Confection claim.(ii) Permission to amend the Particulars of Claim in the Operation Confection claim. (Another email timed at 14.06 provided an outline of the proposed amendment, although no draft Amended Particulars of Claim have been produced.)(iii) A declaration that both claims are proceedings in which a closed material application may be made to the court, pursuant to section 6 of the Justice and Security Act 2013. Alternatively, a declaration that “the non-statutory closed material procedure be ordered by the Court’s own motion.”[10]Mr Coghlan’s position had therefore shifted. He had not made a formal application to amend his Particulars of Claim or to substitute the second defendant in the Operation Confection claim. The defendants allowed Mr Stanage to make the applications that he did and opposed them on their merits rather than taking procedural points. However, they fairly pointed to the very late stage at which the claimant was seeking permission to amend his claim. That approach was sensible since it allowed all matters to be aired and for me to look at the wider picture, including whether there was any realistic prospect that adjourning the defendants’ applications would allow for any deficiencies in the claims to be cured.[11]At the end of the hearing, Mr Coghlan sought to address me directly. I did not consider that appropriate given that he was represented by Counsel and that I was not hearing evidence. Mr Coghlan reacted with what he describes as an outburst. This was short-lived, and I recognised that he was upset at the time. Immediately after the hearing, Mr Stanage asked to see me to apologise on Mr Coghlan’s behalf. I indicated via my clerk that there was no need, the apology was accepted, I understood emotions can run high and it would have no bearing on the outcome. Having said and meant that, I mention it only because Mr Coghlan has since written to me via my clerk providing an explanation and further submissions as to the defendants’ conduct. Having ensured that the defendants have had sight of his letter dated 18 June 2018, I have taken what Mr Coghlan says into consideration.[12]The merits of the claimant’s application for an adjournment cannot be divorced from the merits of the defendants’ applications. By hearing submissions on all the applications before ruling on any of them, I have been able to weigh everything in the balance. When considering the defendants’ applications, I have had in mind at all stages that the claimant seeks an adjournment and an opportunity to strengthen the pleaded case.

The factual background

[13]There is a significant history to these matters, which Mr Coghlan was keen I should recognise. He provided me with lengthy statements and a total of three bundles of exhibits, all of which I have considered.[14]Mr Coghlan maintains that the prosecutions giving rise to these claims are “intrinsically linked” to previous unsuccessful prosecutions. His case is that the defendants in the claims before me are determined to see him convicted of a serious offence “at all costs”. He has been charged with murder on three occasions. He was tried for the July 1994 murder of a man named Chris Little and acquitted by the jury. He was subsequently charged with the kidnapping and murder of David Barnshaw in September 1999. The indictment in that case was stayed by Penry-Davey J on 16 June 2003. I have read the ruling in full. It is extremely troubling. The judge concluded that important material had been deliberately withheld from the defence and from prosecuting counsel and the court.[15]On 9 February 2010, Stephen Akinyemi died at Mr Coghlan’s home. Mr Coghlan was found with serious knife wounds; Mr Akinyemi had been shot. On 13 February 2010, Mr Coghlan was charged with murder. He maintained that Mr Akinyemi had brought the weapons to the scene and had died as Mr Coghlan sought to defend himself from a violent attack. On 29 July 2010, at Liverpool Crown Court, the Crown offered no evidence and a not guilty verdict was entered. Mr Coghlan brought a claim in similar terms to the ones I am concerned with against the Chief Constable of Cheshire Police; the Chief Constable of Greater Manchester Police and the Director General of the National Crime Agency. That claim was summarily determined in the defendants’ favour by Mr Edward Pepperrall QC, sitting as a Deputy High Court Judge, on 17 January 2018 (see Coghlan v Chief Constable of Cheshire Police and others [2018] EWHC 34 (QB)). That judgment provides useful additional background, which I need not repeat.

The ABH claim

[16]On 18 August 2008, there was an altercation between Mr Coghlan and two police officers, Sergeant McDonald and Constable Kiomasy. Mr Coghlan does not dispute that he struck the officers and that he did so without them having used any force on him. McDonald suffered a cut lip and Kiomasy sustained a broken nose. Mr Coghlan maintains, as he has from the outset, that he did not know the men were police officers, he believed he was about to be attacked and that his pre-emptive strike was self-defence.[17]Mr Coghlan was arrested at the scene. He was interviewed on three occasions, on 19 and 20 August 2008 and on 8 October 2008. The transcripts of those interviews are lengthy. The account Mr Coghlan gave then is consistent with the facts pleaded in his Particulars of Claim. He gave reasons for being in fear for his safety, including that he had been warned by the police of threats to his life. His account also contained relevant admissions, including that he had not driven away from the scene when the opportunity was there; he had called friends for assistance and that the officers’ car had been boxed in by his associates. The only issue was whether Mr Coghlan was acting in reasonable self-defence.[18]Mr Coghlan is particularly concerned with an issue as to whether or not he knew or could have been expected to know that the men were police officers. I will assume at this stage that if the matter went to trial he would establish that he could not have known this.[19]Mr Coghlan places heavy reliance on the involvement of Detective Inspector Moran as the senior investigating officer. He claims that DI Moran was involved in the David Barnshaw murder case and was one the officers involved in supressing disclosure. His case is that DI Moran became involved in this case and had another go at “fitting him up”. He maintains DI Moran attempted to hide his involvement. Mr Coghlan also contends that another officer implicated in what occurred in the Barnshaw prosecution (Detective Chief Superintendent Shenton) was involved in the ABH case. He vigorously maintains that the ABH prosecution was motivated by the officers’ malice.[20]One of the documents supplied at the end of the hearing was headed “Position Note on DI Moran”. This was provided after I had questioned in the course of submissions why DI Moran’s involvement was relevant to the issues I had to determine at this stage. I wondered whether Mr Coghlan had understood that I was not required to determine the issue of malice. The conclusion at the end of that note was that DI Moran “was the prosecutor” and that “he influenced (in a malign way) the whole process ... and took a series of steps to avoid the CPS exercising independent judgment.” Insofar as the submissions were addressed towards the issue of whether there was any real prospect of establishing that he was prosecuted by the Chief Constable, I have considered what he says about the role of DI Moran.[21]I have been provided with an extract of a file note which records a review on 21 October 2008 by Ian Lee of Manchester Crown Prosecution Service. The pages which were disclosed and appear in the defendants’ bundle have some redactions. After this was queried, Mr Kinnear QC reviewed the document and produced a new version of the first and last page, which revealed the contents of two sections that had previously been blanked out. The explanation for removing these sections originally was that they were not part of the note of the relevant review decision. A passage on the final page remained redacted. By the time this issue arose, Mr Coghlan had indicated an intention to discontinue his claim against the DPP. However, Mr Kinnear continued to assist the court with the document. He said that he had personally reviewed the unredacted document and that the remaining redaction concerned something in respect of which privilege would be claimed on PII grounds.[22]Amongst the documents served on the afternoon of the second day of the hearing was a document headed “Redacted Document: Application for the court to review the whole document and the redacted section and to disclose to the claimant”. There was no attempt to identify the basis of the application by reference to a rule or Practice Direction. There was no formal application before the court. While I acknowledge that judges have expressed real concerns about disclosure in previous criminal proceedings and that this fuels Mr Coghlan’s belief that disclosure is not being dealt with properly in this case, it would have been inappropriate to embark on hearing an application for disclosure of the unredacted document in this manner. Mr Stanage did not press this ‘application’.[23]From the material before me, it is apparent that Mr Lee attended a conference with counsel on 21 October 2008. DI Moran, DS Hudson and Nicola Moore were present. The evidence was reviewed. Mr Lee noted that Mr Coghlan admitted assault but claimed he was acting in self-defence. He concluded that whatever Mr Coghlan said about his honest belief that he was under threat he could not be said to have acted reasonably and proportionately. He said that Mr Coghlan took the fight to the officers and had a number of opportunities to leave but chose not to.[24]Mr Coghlan was charged with assault occasioning actual bodily harm, the following day, 22 October 2008.[25]Mr Coghlan was due to stand trial on the ABH charge in September 2009. However, the trial was vacated. It was relisted for April 2010. In the interim, Mr Coghlan was arrested and charged with the Akinyemi murder. On the claimant’s application, the ABH trial was postponed until the conclusion of the murder proceedings. The prosecution offered no evidence in that case in July 2010 and the claimant was released from custody. The ABH trial was relisted but was again vacated after the claimant was charged with the Operation Confection conspiracy. After the discontinuance of that prosecution, a conference with counsel took place on 23 June 2011. The note of that conference indicates that it was agreed that the combined effect of the age of the offence together with the amount of time spent on remand would render any sentence negligible. The Crown Prosecution Service decided to offer no evidence, on the ground that it was no longer in the public interest to prosecute.[26]At the outset of the hearing, Mr Stanage confirmed that the ABH claim was now pursued only against the Chief Constable and only on the basis of malicious prosecution. The claimant wished to discontinue his claim against the DPP and to amend the claim form to remove his claims for false imprisonment and misfeasance in a public office against the Chief Constable.

The Operation Confection claim

[27]Mr Coghlan was arrested at Manchester Airport on 10 September 2010 by officers of the Serious Organised Crime Agency (the predecessor of the National Crime Agency). His arrest arose out of a police investigation code-named “Confection” into the importation, distribution and supply of cocaine.[28]Mr Coghlan was interviewed on 11 September 2010 and provided a prepared statement denying the allegations.[29]By the time that Mr Coghlan was arrested, fourteen other defendants had already been arrested and charged in connection with Operation Confection. The claimant points to an intelligence briefing on 13 April 2010 at which one of the Greater Manchester Police officers (Officer Hull) made a note in his notebook that there was no evidence to support charges against Coghlan and “he was not to be mentioned by GMP”.[30]Mr Coghlan was charged with conspiracy to supply cocaine on 11 September 2010. A note of that date by Andrew Penhale, Unit head of the CPS Organised Crime Division (North), records his decision that Mr Coghlan should be charged. He had reviewed a case summary drafted by counsel; pre-interview disclosure and Mr Coghlan’s statement. He recorded that there had been thorough discussions involving the reviewing lawyer, counsel, Greater Manchester Police and SOCA.[31]It is the claimant’s case that the defendants set out to falsely implicate him in the drug offences by inventing a global conspiracy by amalgamating a series of unrelated conspiracies and alleging that he sat at the top. He alleges that evidence was fabricated to support this. He relies in particular on mis-transcription of recordings obtained from a probe; what he says was the deliberate false creation of a telephone call between other alleged conspirators (which became known as the Mel/El call) and erroneous evidence about another call on 3 November 2009. Against the background of what happened in the Barnshaw murder case, the mis-transcription of the probe recordings and the erroneous reporting of telephone evidence does raise concerns.[32]On 20 January 2011, HHJ Brown gave a ruling on an application to dismiss following a four-day hearing at Liverpool Crown Court. The judge scrutinised the evidence. This included the amended transcripts of the probe evidence. He said that it would come as no surprise to the Prosecution that he was concerned about what had occurred with that evidence. He was basing his observations on the revised (that is corrected) transcripts. He considered that the probe evidence was at best ambiguous and at worst had been completely misunderstood. He left it out of account in determining the application. HHJ Brown heard argument about the Mel/El telephone call. At that stage, the Crown were still asserting that the call had taken place although the defence told him that did not fit with billing records. The judge referred to the call in his ruling without giving it any particular prominence. He also considered events on 3 November 2009, referring to a schedule of telephone traffic between conspirators. The judge did take account of the contentious call (Barnes to Hartwell at 18.29, alleged to have been for 2 minutes but in fact lasting only 4 seconds) but this was only one of a significant number of calls that day which he considered. HHJ Brown concluded that there was a case for Mr Coghlan to answer and that the application should be dismissed.[33]It appears that HHJ Brown took a robust view in relation to disclosure. He said that he understood why the defence were sceptical and suspicious about the present situation and stressed the need for careful review of the disclosure exercise.[34]On 13 May 2011, Special Counsel was appointed. In a note to counsel dated 16 May 2011 HHJ Brown said “It is important to stress that Special Counsel has been appointed in respect of three discrete areas of sensitive material and not in relation to disclosure as a whole. Therefore, the ambit of her involvement is limited though the prosecution have informed me they will show her any material she wishes to see.” HHJ Brown also noted that day that he had told Special Counsel what the case was about in general terms and had identified to her that “one of the key issues was whether there was one or more than one conspiracy. In particular as regards the events of the 3rd November 2009 and whether these were part of the conspiracy charged.”[35]Mr Coghlan contends that the Operation Confection prosecution against him collapsed “because of what Special Counsel uncovered.” He also asserts that Special Counsel had barely made a start and suggests there was clearly far more sensitive material not seen by Special Counsel.[36]On 9 June 2011, at a hearing before HHJ Brown at Liverpool Crown Court, Leading Counsel for the Prosecution, Brian Cummings QC, offered no evidence against Mr Coghlan and two co-defendants. Special Counsel were in court for the hearing. Mr Cummings told the court that “in light of evidential and other developments the prosecution no longer considers that there is strong evidence to prove this nexus as against these defendants in this trial.” He went on to tell the court that the prosecution no longer considered it to be in the public interest to proceed. That must be read in light of a note provided by Mr Cummings to the judge on 10 June 2011. In that note, Mr Cummings indicated that Mr Penhale, the lawyer who took the decision, had expressed concern that what he said in court did not accurately reflect Mr Penhale’s reasons for his decision. Mr Penhale’s simple point was that the decision was taken purely on the basis of the first limb of the CPS’s Full Code Test (i.e. that there was no longer sufficient evidence to provide a realistic prospect of conviction).[37]The claimant says that there was never a realistic prospect of conviction. That was the case at the outset as evidenced by Officer Hull’s notebook entry and it was the case at the end as evidenced by the decision to offer no evidence and the reasons for that. Further, the claimant relies upon what he says was a “remarkable” concession made in proceedings in the Court of Appeal Criminal Division, concerning Elliott Hartwell. Hartwell pleaded guilty to the conspiracy alleged and was sentenced on the basis that he had an organisational role. He was said to have been the link between the architect of the conspiracy (Simon Dutton) and Mr Coghlan. In the context of appeals against conviction and sentence by Hartwell, Counsel for the Crown, Mr Ainsworth, conceded that contact between him and Mr Coghlan could no longer be relied upon as evidence of Hartwell’s involvement in the conspiracy. Mr Coghlan states that Mr Ainsworth went so far as to concede that if the case were to be started again his name would not feature in any summary of the Crown’s case. He relies upon what he described as the two “bookends”, namely the note of Officer Hull at the start and the concession made to the Court of Appeal at the end, as demonstrating that there was never any realistic prospect of his conviction. I have considered the Court of Appeal’s judgment in R v Hartwell[2016] EWCA Crim 42 and will return to this in due course.[38]As I have indicated, the claimant accepts that the Operation Confection claim cannot proceed as currently pleaded. He seeks permission to amend his Particulars of Claim generally and to substitute the National Crime Agency as second defendant. The claims for false imprisonment and misfeasance in a public office included in the claim form are not pursued. As with the other claim, this is now a claim for malicious prosecution only.

Application to appoint Special Counsel

[39]Having set out the background to these claims, I shall deal with the claimant’s application dated 11 May 2018 first. That application sought an order that “The Court appoints Special Counsel to review the disclosure process” and that “The Defendants’ applications be adjourned generally with liberty to restore pending the completion of the review of disclosure by Special Counsel.” The application did not identify the basis on which it was claimed the court had jurisdiction to make such an order.[40]In his skeleton argument, Mr Stanage referred to Part 2 of the Justice and Security Act 2013 as containing the relevant law. In his oral submissions, he suggested that the court could alternatively make the order outside the statutory scheme of its own motion.[41]Section 6 of the Justice and Security Act 2013 provides that a court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court. Such an application may be made if two conditions are met. The first is that a party would be required to disclose sensitive material or would be required to make such a disclosure but for the possibility of claiming public interest immunity; the fact that there would be no requirement to disclose it if the party chose not to rely on it or by virtue of section 17(1) of the Regulation of Investigatory Powers Act 2000 or any other enactment. The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.[42]“Sensitive material” is defined in section 6(11) as “material the disclosure of which would be damaging to the interests of national security.”[43]Section 9(1) of the Act allows for the appointment of a special advocate to represent the interests of a party in any section 6 proceedings from which the party (and any legal representative of the party is excluded).[44]CPR Part 82 contains the procedural rules applicable to proceedings to which section 6 applies. Rule 82.2 modifies the overriding objective, with r.82.2(2) providing:
“The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security.”
Rule 82.9 provides the procedure through which the Attorney General may be asked to appoint a special advocate. Rule 82.21 provides that any person who intends to apply for a declaration under section 6(2) of the Act must give at least 14 days written notice of that intention to the court, every other party to the relevant proceedings and to the Secretary of State. An application for a declaration under section 6(2) is governed by r.82.22 and requires the applicant to file specific material, including a statement of reasons to support the application and material on which the court is asked to find that the first condition in section 6 is met.[45]Mr Stanage referred to the decision of the High Court in Northern Ireland in Morley v Ministry of Defence [2017] NIQB 8 at paragraphs 13 and 14. In reality, this simply provides a summary of the statutory provisions in which it is correctly identified that the two statutory conditions must be met before the court can make a declaration under section 6 and that even then the court retains a discretion to refuse to make a declaration. He also referred to CF v Security Service[2014] 1 WLR 1699, in particular paragraph 36 where Irwin J held that the court may make a declaration, and adopt a closed material procedure, before disclosure has been given and without a PII claim having been made or determined.[46]The reliance on CF by the claimant is a little curious. I believe it was cited in response to the contention in Ms Barton QC’s skeleton argument that the application was “premature in that it would only be appropriate to consider this issue when the disclosure process is complete and public interest immunity is said to attach to a document or documents.” However, it is notable that the context of the decision in CF was one involving strong objections by the claimants as to the inherent unfairness (to claimants) of closed material procedures. The claimants asserted that the PII process is necessarily fairer than the process which would follow a declaration under section 6 of the Act.[47]Consideration of the statutory provisions, CPR Part 82 and the authorities cited by Mr Stanage (including CF and Rahmatullah v Ministry of Defence [2017] EWHC 547 (QB)) simply demonstrates that the claimant’s application for a declaration under section 6 is wholly misconceived.[48]The claimant has not even attempted to comply with Part 82. There is no material before the court to begin to justify a finding that the first condition in section 6 is met. At the end of the hearing, the claimant provided a document headed “Classes of sensitive material for which Public Interest Immunity (PII) would be claimed”. The categories identified are:a. A. Intrusive surveillance of the Claimant, his vehicles, home and office premisesb. B. Grice probe materialc. C. NCA/GMP Officers’ notebooksd. D. Dutton phonese. E. Hartwell probesf. F. Mel/El callg. G. 3 November 2009: Hartwellh. H. 3 November 2009: The Hartwell calli. I. Operation Confection/ Separate Conspiracies[49]There is nothing within any of these categories that could even remotely be said to satisfy the first condition. Indeed, it would appear that the claimant seeks to apply his own definition of “sensitive material” rather than looking to the statute. The statutory definition is “material which would be damaging to the interests of national security”. I accept that the defendants are likely to have material which they would seek to withhold on grounds of public interest immunity but there is no reason to believe that any such material would be damaging to the interests of national security. The best that Mr Stanage could do in his submissions was to say that there was “an international element” to the Operation Confection investigation; the claimant did not know what material existed but that “somewhere within what there is, there is likely to be something touching on national security”. With respect, that is hopeless.[50]There is no possible basis for a declaration under section 6. In my judgment, the claimant’s attempt to use this to justify an adjournment of the defendants’ applications subverts the purpose of the procedure under Part 2 of the Justice and Security Act 2013.[51]Further, the suggestion that the court has an inherent jurisdiction to adopt a closed material procedure and to appoint a special advocate in an ordinary civil claim for damages is answered by Al Rawi v Security Service[2011] UKSC 34. There is no such common law power.[52]I dismiss the claimant’s application dated 11 May 2018. This application was bound to fail and wholly failed to address the basis upon which the court had power to make the order sought. It was totally without merit and should be recorded as such.

Legal principles – malicious prosecution

[53]It is well established (see Lord Keith of Kinkel in Martin v Watson [1996] A.C. 74 at 80C) that in an action for malicious prosecution, a claimant must prove that:(i) he was prosecuted by the defendant in question;(ii) the prosecution was determined in his favour;(iii) it was without reasonable and probable cause;(iv) it was malicious.[54]In each case, the Director of Public Prosecutions admits to being the prosecutor. She maintains that there was reasonable and probable cause for the prosecution and denies any malice. The other two defendants deny prosecuting the claimant. In the case of the Director General of the National Crime Agency, it is now conceded that she is not vicariously liable for the officers in question and therefore that she has been wrongly named. The claimant seeks to substitute “the National Crime Agency”. That application is resisted by Mr Johnson QC on various grounds, including that there are no reasonable grounds for maintaining a claim against the NCA.[55]The authorities concerning the principles to be applied in determining whether a defendant will be held to be a prosecutor for the purpose of the tort of malicious prosecution were recently reviewed by Wyn Williams J in Moucher & others v Chief Constable of South Wales Police [2016] EWHC 1367 (QB). At para. 446 he said:
“It is now well established that a person who simply provides information to the police or the Crown Prosecution Service upon which a decision to prosecute is then made cannot be liable for the tort of malicious prosecution even if the information which he provides is false and even if he knows the information to be false. However, a person will be liable for the tort if (1) he falsely and maliciously provides information about an alleged crime, expresses a willingness to testify against the alleged perpetrator and desires and intends that a prosecution should be brought against the alleged perpetrator (2) the facts relating to the alleged crime are exclusively within the knowledge of the person providing the information so that it is impossible for the person to whom it is imparted to exercise any independent judgment in the matter and (3) the conduct of the person providing the information is such that he makes it virtually inevitable that a prosecution will result from his complaint.”
[56]A similar review of the authorities was conducted by Mitting J in Rees & others v Commissioner of Police for the Metropolis[2017] EWHC 273 (QB). At paragraph 144,

the judge concluded:

“The case law establishes that an individual or group of individuals may be treated as the prosecutor where (i) they alone know the facts about the alleged offence. (ii) they deliberately misstate the facts to the person who makes the decision to lay the charge and so start the criminal process. (iii) they intend that there should be a prosecution. (iv) the person who decides that the charge should be laid and prosecution brought cannot be expected to and does not form an independent judgment on the question whether or not a charge should be laid and if so which.”
Since circulating my judgment in draft, the Court of Appeal have given judgment, overturning Mitting J’s decision on the facts. See Rees v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587. However, the Court of Appeal (at para.45) endorsed Mitting J’s summary, noting also his citation of a passage from the judgment of Brooke LJ in Mahon v Rahn [2000] 1 WLR 2150, paragraph 269:
"In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?"
[57]I do not think I can usefully add to those recent and comprehensive reviews of the authorities on the issue of whether a defendant is to be treated as a prosecutor and adopt what is set out above as helpful summaries of the correct legal principles.[58]Both prosecutions were determined in the claimant’s favour, so that element need not be considered further.[59]Each element of the tort must be proved by the claimant. It is important to appreciate that absence of reasonable and probable cause and malice must be established separately. Want of reasonable and probable cause cannot be inferred from malice: see Sharp J in Qema v News Group Newspapers Limited[2012] EWHC 1146 (QB) [58].[60]In Glinski v McIver [1962] AC 725 at 758, Lord Denning restated the rule of law that:
“In order to succeed in an action for malicious prosecution, the plaintiff must prove to the satisfaction of the judge that, at the time when the charge was made, there was an absence of reasonable and probable cause for the prosecution.”
[61]The prosecutor must act honestly as well as reasonably. This involves an objective issue and a subjective one, see Dallison v Caffery [1965] 1 QB 348 at 371, per Diplock LJ:
“The test whether there was a reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which was in fact possessed by the defendant, would believe that there was a reasonable and probable cause. Where that test is satisfied, the onus is on the person who has been arrested or prosecuted to established that his arrestor of prosecutor did not in fact believe what ex hypothesi he would have believed had he been reasonable.”
[62]In Herniman v Smith [1938] AC 305 [319], Lord Atkin said:
“his duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for the prosecution.”
On the other hand, a defence such as self-defence cannot be ignored in considering reasonable and probable cause. See Paul v Chief Constable of Humberside Police [2004] EWCA Civ 308 where the Court of Appeal found that there was a case to go to the jury that the police did not honestly believe that the claimant had had acted unlawfully where they had downplayed or ignored “the growing volume of supportive evidence that he had, or might have been acting in reasonable self-defence”.[63]I recognise that the issue of malice would be a significant and hotly contested one at trial. The claimant vigorously asserts that both prosecutions were malicious, motivated by a desire to see him convicted “at all costs”. This is denied by the defendants. However, the issue is not central to the determination of the applications before me at this stage and I can therefore deal with the legal position in relation to this issue briefly.[64]Malice “covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice” per Lord Devlin in Glinski v McIver p766.[65]InScott v Home Office[2009] EWCA Civ 1215, Longmore LJ said [47]:
“It is usually impossible to decide any issue of the bad faith elements of malicious prosecution in summary proceedings”
However, there must be some evidence of malice and there must be a case that is capable of succeeding.

Principles applicable to strike out / summary judgment applications

[66]CPR r.3.4(2)(a) provides that:
“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim,”
[67]CPR r 24.2 provides that: “The court may give summary judgment against a claimant … on the whole of a claim or on a particular issue if –(a) it considers that – (i) that the claimant has no real prospect of succeeding on the claim or issue;” … and(b) there is no other compelling reason why the case or issue should be disposed of at trial.” (i) that the claimant has no real prospect of succeeding on the claim or issue;” … and[68]In James-Bowen & Others v Commissioner of Police for the Metropolis [2016] EWCA Civ 1217, the Court of Appeal noted that defendants seeking to challenge claims at an early stage will frequently seek to rely on both provisions but that it is important to appreciate that they provide different grounds of relief. An application under r.3.4(2)(a) is concerned with striking out defective statements of case. It requires the court to examine the statements of case to decide whether the allegations, if established, are capable as a matter of law of supporting the claim. Part 24 is concerned with the prospects of success, in relation to which Moore-Bick LJ said:
“It proceeds primarily on the assumption that the statement of case is not defective as a matter of law, but that the pleaded case has no real prospect of being made good at trial. Inevitably the two overlap when the pleaded case is said to be bad in law, because a case which is bad in law has no prospect of success, but in principle it is desirable not to confuse the different procedures.”
[69]In relation to an application to strike out under r.3.4(2)(a), it should be assumed that the claimant will be able to establish the facts pleaded in the Particulars of Claim (see TBS v Metropolitan Police Commissioner[2017] EWHC 3094 (QB) at [7]).[70]An application for summary judgment may succeed where a strike out application would not but the court should be satisfied that all substantial facts relevant to alleged cause of action are before the court and that there is no real prospect of oral evidence affecting the court’s assessment of the facts (see S v Gloucestershire County Council [2001] Fam 313).[71]The court will not strike a claim out or give summary judgment lightly. A claim is only to be struck out if it is clear and obvious that the claim, as pleaded, cannot succeed. I bear in mind what

Judge LJ said in Swain v Hillman [2001] 1 All ER 91:

“To give summary judgment against a litigant on papers without permitting him to advance his case before the hearing is a serious step.”

Application to Amend the Particulars of Claim

[72]CPR Part 17 deals with amendments to statements of case. The claimant requires the court’s permission to amend his Particulars of Claim.[73]In Kim v Park[2011] EWHC 1781 (QB), Tugendhat J said:
“where the court holds that there is a defect in the pleading, it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right.”
[74]The court’s general power to grant permission for the Particulars of Claim to be amended is subject to the special provisions set out in CPR r.19.5 where the amendment involves the addition or substitution of a party after the end of a relevant limitation period as is the case here.

Analysis of the ABH claim

[75]Simply considering the Particulars of Claim reveals that this claim is hopeless against both defendants. Without meaning any disrespect to Mr Stanage who has done his best to put his client’s case, his skeleton argument in relation to this claim is very weak.[76]The claimant does not wish to continue his claim against the Director of Public Prosecutions. He is right to recognise that he could not succeed against the DPP. The Particulars of Claim (which I understand to have been pleaded by the claimant himself) contain no allegations of malice on the part of the DPP or anyone acting for the CPS. Further, the case as pleaded puts forward no basis for a finding of lack of reasonable and probable cause on the DPP’s part.[77]The claimant having acknowledged that the claim against the DPP cannot succeed but not having formally discontinued against her, I strike out the claim against her under CPR 3.4(2)(a) since the Particulars of Claim disclose no reasonable grounds for bringing such a claim.[78]The Claimant did not allege in the Particulars of Claim that he was prosecuted by the Chief Constable. He acknowledged that the Chief Constable was likely to contend he was not the prosecutor and admitted he had no knowledge of who took the decision to charge him. He asserted that the Chief Constable has “potential liability for the prosecution” and suggested that he would only have the necessary knowledge as to who was the prosecutor following disclosure.[79]Within the defendants’ bundle is a CPS record dated 21 October 2008 prepared by Ian Lee, the reviewing lawyer. It is clear from this that the decision to charge the claimant, and as to which charge to lay, was taken by the CPS, following a conference with Counsel. Mr Lee had been provided with evidence including statements from the police; a note relating to forensic analysis of blood staining; medical evidence and transcripts of the claimant’s interview. The claimant’s case that he was acting in self-defence was considered by Mr Lee. He concluded:
“Whatever is said about his honest belief that he was under threat from an imminent attack, he cannot in my view be said to have acted reasonably and proportionately to the threat. The threat was in his own mind. He had options to leave the scene … He took the fight to the police officers. He called for support and with that support he boxed in the officers so that they couldn’t get away. … He had a number of opportunities to leave but chose not to. For those reasons I do not feel his defence to be credible.”
[80]In light of that note, the claimant cannot properly maintain that the prosecution was brought by the Chief Constable. By her Defence, the DPP admitted that she (acting through the reviewing lawyer, Mr Lee) had made the decision to charge the claimant. She said that “This was the independent decision of a professional prosecutor” and that it “was based purely on the evidence before him”. That is entirely supported by the note. There is nothing within the claimant’s pleaded case that is capable of establishing that the Chief Constable in any way prevented the CPS from exercising independent judgment. On the contrary, it is clear that Mr Lee exercised a judgment, having sought advice from Counsel, which largely depended on his assessment of the claimant’s own account.[81]Had the claimant sought pre-action disclosure, he would have obtained a copy of this note prior to pleading his case. Having not done so, I do not consider it appropriate for him to contend that he was unable to put forward a positive case on the first limb of the tort, namely that he was prosecuted by the Chief Constable.[82]The claimant has pleaded a case in relation to malice against the Chief Constable. However, as Sharp J said in Qema, want of reasonable and probable cause cannot be inferred from malice. Even on his own case, there was a case for him to answer on the assault charges. The charges could properly have been left to a jury. The subsequent decision not to proceed with this prosecution was taken on the basis of the public interest test rather than the evidential test. The analysis of Mr Lee as to the reasonableness and proportionality of the claimant’s use of force is perfectly logical. The claimant’s case is not capable of establishing want of reasonable and probable cause.[83]There is no application to amend the Particulars of Claim in this matter and no basis to think that any further disclosure could assist the claimant. In my judgment, the claimant’s pleaded case does not disclose any reasonable grounds for bringing a claim against the Chief Constable. Accordingly, the claim should be struck out in its entirety against both defendants under CPR 3.4(2)(a).[84]Had I concluded that the allegations as pleaded against the Chief Constable were capable, if established, of supporting a claim for malicious prosecution as a matter of law, I would nevertheless have given summary judgment for the Chief Constable under CPR Part 24 on the ground that the claimant has no real prospect of succeeding on the claim, having regard to the contents of Mr Lee’s note.[85]Having struck out the claim under r.3.4, I am required to consider whether this claim was totally without merit. In my view it was. A finding that the Particulars of Claim disclose no reasonable grounds for bringing it and/or that there is no reasonable prospect of succeeding on the claim cannot lead automatically to it being totally without merit. In R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82, the Court of Appeal distinguished cases that were “bound to fail” or “hopeless” from those in which the claimant “has identified a rational argument in support of his claim but where the judge is confident that, even taking the case at its highest, it is wrong.” I have in mind what Maurice Kay LJ said in R(Grace) v Secretary of State for the Home Department[2014] EWCA Civ 1091:
“[N]o judge will certify an application as TWM unless he is confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequences of his decision in the particular case.”
The consequence here is that recording the claim was totally without merit will require me to go on to consider whether it is appropriate to make a civil restraint order.

Analysis of Operation Confection claim

[86]The claimant, through Mr Stanage, concedes that the claim cannot succeed on the basis of the Particulars of Claim as currently pleaded. I repeatedly invited Mr Stanage to address the claimant’s case by reference to the correct legal framework. It is fair to say that his submissions were vague. The claimant was given the opportunity to identify how he would propose amending the Particulars of Claim. Mr Stanage’s emailed document timed at 14.06 on 24 May 2018 purported to do that, although I am not convinced that this really addressed deficiencies in the Particulars of Claim rather than simply highlighting evidence that might be relied upon.[87]It is further conceded that the claim against the currently named second defendant, the Director General of the National Crime Agency cannot be maintained. The claim is put on the basis of vicarious liability for the acts of officers from the Serious Organised Crime Agency. SOCA became the National Crime Agency pursuant to the Crime and Courts Act 2013. For the purpose of this application, the parties are agreed that the Director General cannot, as a matter of law, be vicariously liable for the conduct of the officers concerned and that the correct defendant so far as the allegations against SOCA officers are concerned would be the National Crime Agency.[88]The claimant therefore seeks to amend his Particulars of Claim to substitute the National Crime Agency as second defendant and generally to correct deficiencies in the pleaded case. He invites the court to adjourn the defendants’ applications and to direct that he amends his Particulars of Claim rather than striking the claim out at this stage.[89]For reasons which will become apparent, I intend to deal first with the defendants’ applications in relation to this claim (and the claimant’s cross-application to amend his Particulars of Claim generally) as though the second defendant were correctly named as the National Crime Agency and I will then return to the application to substitute the NCA for the Director General.[90]The claimant is, as the defendants put it, “trying to ride two horses”. In the Particulars of Claim, he asserts that he has no knowledge of who took the decision to charge him and that he will only have such knowledge following disclosure. He then goes on to set out his case as to who prosecuted him in the alternative. He alleges either that the CPS was unable to exercise any independent judgment or alternatively that the CPS maliciously prosecuted him. Throughout the Particulars of Claim, there is a failure to clearly set out the case against each defendant. The defendants are frequently grouped together or referred to simply as “the prosecution”.[91]Again, the claimant did not seek pre-action disclosure. Had he done so, he would have obtained the note of Andrew Penhale dated 11 September 2010, which has been disclosed within this application. Mr Penhale was the Unit head of the CPS Organised Crime Division (North). He advised that the claimant should be charged. The Defence of the DPP sets out that the CPS had been considering the drugs conspiracy case in respect of the claimant and others for some time prior to his arrest. The claimant’s pleaded case would need to identify, with greater particularity, how he puts his case that each of the first and second defendants were responsible for his prosecution and how they precluded Mr Penhale or the CPS from exercising an independent judgment. The claimant has chosen not to address this issue pre-action and instead to put forward vague alternative cases. He suggests that the appointment of Special Counsel will, in some unidentified way, allow the claim to be properly formulated.[92]The claimant seeks to place heavy reliance upon what was said in the Court of Appeal Criminal Division in R v Hartwell. However, the contentions he makes in his witness statement dated 11 May 2018 appear to ignore much of the judgment of Treacy LJ.[93]Having read that judgment carefully in full, it is clear that the argument was advanced before the Court of Appeal that evidence in the case against Hartwell had been manipulated for the purpose of implicating Mr Coghlan and that this was rejected by the court. It is also apparent that there had been a series of hearings in the Court of Appeal as part of a lengthy process including the instruction of special counsel and involving issues of public interest immunity and disclosure. The Crown conceded that it could no longer assert that the events of 3 November 2009 were part of the relevant conspiracy. However, after what Treacy LJ described as “a lengthy and painstaking review and inquiry into extremely substantial materials generated by investigations into the conspiracy”, the court rejected the assertions of prosecutorial misconduct or bad faith. At paragraph 42, the Court of Appeal expressly rejected the assertion that the events of 3 November 2009 were only included to provide a link between Dutton and Coghlan.[94]In relation to the Mel/El call, the Court of Appeal found that there had been an inadvertent error on the part of prosecuting counsel rather than any bad faith and noted that the defence had the necessary data available to show the error.[95]Mr Coghlan suggests (at paragraph 84 of his statement of 11 May 2018) that Hartwell pleaded guilty “unwittingly and equivocally to a global conspiracy”. Again, this is contrary to the findings of the Court of Appeal that Hartwell’s plea was tendered in an entirely unqualified way and that there was evidence of the conspiracy to which he pleaded guilty.[96]In the final paragraph of the judgment, Treacy LJ reiterated that “this court has rejected the assertions of bad faith and/or improper prosecutorial manipulation in the conduct of this case.”[97]The claimant having conceded that the claim as presently pleaded does not disclose reasonable grounds for proceeding against any defendant, the issue for me is whether I should allow the opportunity for him to amend his Particulars of Claim so to proceed against all or any of the defendants. That necessarily involves considering whether there is any real prospect of the claimant succeeding on his claim once it is amended. Even if that is the case, I must still consider whether I should, in the exercise of my discretion, give the claimant permission to amend his Particulars of Claim rather than striking the claim out.[98]I do not consider that there is any real prospect of the claimant establishing that he was prosecuted by the first and/or second defendants. As the third defendant’s defence makes clear, the decision to prosecute was taken by the CPS. That accords with the procedure laid down by section 37B(2) of the Police and Criminal Evidence Act 1984 and is evidenced by the note of Andrew Penhale of 11 September 2010. The CPS lawyers had been advising for some time before the claimant was charged. Advice was sought from experienced counsel. Although the Court of Appeal decision in Rees is a reminder that a police officer may still be a prosecutor where the CPS and counsel are involved, it also makes it clear that cases are fact specific. On the facts of this case, it cannot properly be maintained that it was virtually impossible for the CPS to exercise any independent discretion or judgment.[99]The claimant admitted in the Particulars of Claim that he could not advance a positive case such as would justify a finding, as a matter of law, that he was prosecuted by the first and/or second defendants. He suggested that he required disclosure to enable him to know when and by whom the decision to charge him was made. Having had disclosure of the Penhale note, he has made no attempt to provide draft amended Particulars of Claim. The reality would appear to be that he is unable to advance his case that he was prosecuted by the first and/or second defendant, not through want of disclosure but because that contention is not supportable applying the correct legal principles to the facts of this case.[100]In those circumstances, there is no proper basis for allowing the claimant the opportunity to amend his Particulars of Claim. Since they are defective in relation to the first essential limb of the tort, they do not disclose reasonable grounds for bringing the claim against the first two defendants and should be struck out.[101]In relation to the third defendant, the Particulars of Claim do not properly particularise any allegations of malice or bad faith. No employee or agent of the CPS is identified as having acted maliciously. The CPS sought the advice of independent counsel. The re-transcription of the probe evidence is not alleged to have been done by the CPS. After a painstaking review, the Court of Appeal rejected the allegations which the claimant now seeks to maintain that the evidence in relation to Hartwell had been manipulated through bad faith on the part of the prosecution to implicate the claimant.[102]There is no reason to believe that allowing the claimant to amend his Particulars of Claim would allow him to put forward any reasonable grounds for maintaining a claim of malice against the third defendant.[103]I have concluded that the claim is defective against all three defendants, in that it fails to address all the essential elements of the tort. I do not believe there is any real prospect that amendment of the Particulars of Claim would allow the claimant to put forward a case that discloses any reasonable grounds for bringing a claim against any defendant. It follows that I strike the claim out in its entirety pursuant to CPR r.3.4(2)(a).[104]Had I concluded that the claimant may have been able to put his case in order by amendment of the Particulars of Claim, I would have had to consider whether I should exercise my discretion to permit him the opportunity to do so. In addition to taking account of the merits of the case, I would have had to take into account a number of relevant factors:(i) The claimant chose to issue his claim at the very end of the limitation period and without complying with the Practice Direction for pre-action conduct.(ii) He has had a long period in which to put his claim in order.(iii) The defendants served their Defences in February and made their strike out applications then. Despite this, the claimant has still not provided draft Amended Particulars of Claim.(iv) The claimant has not discharged his liability to the first and second defendants under the costs order made in the earlier claim arising out of the death of Mr Akinyemi. Those factors would have had to be balanced, weighing the merits of the claim and the principle identified in Kim v Park that generally a claimant will be given an opportunity to put right defects in his statement of case, provided that there is reason to believe that he will be in a position to do so. Even had I thought that might be the case, it certainly would not have been a foregone conclusion that I would have permitted amendment at this stage.[105]Had I decided not to strike out under r.3.4(2)(a), I would have gone on to consider the defendants’ alternative applications for summary judgment under r.24.2.[106]I have concluded that the claimant has no real prospect of succeeding on his claim against any of the defendants. In addition to the factors relied upon in my decision to strike out the claim under r.3.4(2)(a), it seems to me that the claimant has no real prospect of proving lack of reasonable and probable cause.[107]At paragraph 32, I have identified the basis upon which HHJ Brown refused the claimant’s application to dismiss and concluded that there was a case to answer. I acknowledge the claimant’s argument that on dates either side of HHJ Brown’s ruling it was considered that there was insufficient evidence against him to provide a realistic prospect of conviction (as evidenced by the entry in Officer Hull’s notebook; the basis on which his prosecution was discontinued and what was said in the Court of Appeal). I also recognise his argument that nothing in reality had changed and his suspicions as to what was revealed in the closed material procedure. However, the evidence before me indicates that the decision to prosecute Mr Coghlan was taken by Mr Penhale on the basis of a proper review of the available evidence and following consultation with independent Counsel. After a lengthy hearing involving review of the evidence, HHJ Brown concluded that there was sufficient evidence for the prosecution to proceed. In doing so, he discounted the probe evidence and was aware that the Mel/EL call was disputed. Having considered what the Court of Appeal said in R v Hartwell, I do not consider that the concession made there gives rise to a real prospect of establishing a want of reasonable and probable cause when Mr Coghlan was charged and throughout the prosecution.[108]It follows that, had I not struck this claim out under r.3.4(2)(a), I would have given summary judgment against the claimant under r.24.2 on the basis that he had no real prospect of succeeding on the claim.[109]Given my conclusions above, the question of substituting the National Crime Agency as second defendant in place of the Director-General does not arise. Had it remained a live issue, it would have fallen to be considered by reference to CPR r.19.5, given that it was an application to substitute a party after the end of the relevant limitation period.

(c) …” [Not relevant]

[110]The issue of whether a mistake as to a party is of the type falling within r.19.5(3)(a) is one on which there is a considerable body of case law and has been described by the Court of Appeal in Adelson v Associated Newspapers Ltd[2008] 1 WLR 585 as a “difficult area of procedural law”. The authorities were reviewed by Leggatt J in The Insight Group Ltd v Kingston Smith [2012] EWHC 3644 (QB).[111]I heard very limited argument on this point. It was not addressed within the parties’ skeleton arguments and the relevant authorities were not provided. Mr Johnson invited me to find that there was no jurisdiction to allow the substitution having regard to CPR 19.5 and took me to the notes in the White Book and the test laid down in The Sardinia Sulcis [1991] 1 Lloyd’s Rep 201. He pointed out that the mistake must be as to name rather than identity, albeit the test is broader than mere correction of name. Mr Johnson referred to paragraph 7 b. of the Particulars of Claim and submitted that this was not a case where the claimant had got the right description but the wrong name for the intended defendant but rather one where the claimant was wrong in law in alleging that the named second defendant was vicariously liable. Mr Stanage did not respond to these submissions. Neither party addressed me as to r. 19.5(3)(b).[112]Had this issue been determinative of whether I allowed the claim against the NCA to proceed, I would have called for further submissions. However, since I would have struck it out even had the NCA been correctly named, this difficult procedural issue no longer arises. In those circumstances, I do not consider it necessary to seek further submissions; nor do I think it would be particularly useful for me to add to the body of case law by expressing a conclusion when the point has not been fully argued before me.[113]Again, since I am striking the claim out under r.3.4, I must go on to consider whether it was totally without merit. As I have indicated above, this must be considered separately and does not follow simply from a finding that the Particulars of Claim disclose no reasonable grounds for bringing it and/or that there is no reasonable prospect of succeeding on the claim. Applying the same test, I reach a different conclusion in relation to this claim. I am prepared to accept that there was a rational basis for the claim even though I am confident that, even taking the case at its highest, it is wrong. To some extent, this is a matter of ‘feel’, noting that claims should not lightly be certified as being totally without merit. I can understand why the claimant sought to bring this action, albeit I do not accept it had any real prospect of success.

Consideration of a Civil Restraint Order

[114]Having decided that the ABH claim was totally without merit, I am also required to consider whether it is appropriate to make a civil restraint order. I bear in mind that I have also decided that the claimant’s application of 11 May 2018 was totally without merit and that Mr Edward Pepperall QC determined that the earlier claim was totally without merit. There was a suggestion in that case that at least one previous claim or application had been determined to be totally without merit, but no details were provided to the deputy judge nor do I have any confirmation of this.[115]Practice Direction 3C deals with civil restraint orders and paragraph 3.1 indicates that an extended civil restraint order may be made where “a party has persistently issued claims or made applications which are totally without merit”. On the basis of the information currently before me, I am not yet persuaded that I should make such an order at this stage. I recognise that there is a basis on which the defendants might urge me to do so and am prepared to give them the opportunity to make representations if they seek such an order. If that course is to be taken, they will need to identify all matters relied upon and provide a draft order setting out the precise terms sought. The claimant would, of course, be given an opportunity to respond.[116]My provisional view, subject to further representations, is that the circumstances (two claims and an application now being recorded as totally without merit) are such that the court is coming close to making an extended civil restraint order. However, I would be inclined to allow the dust to settle from these claims in the hope that Mr Coghlan would then think carefully about the wisdom of pursuing any further wholly unmeritorious claims or applications without the need for an order restraining him from issuing any further proceedings without permission. If, having considered this indication, the defendants seek to persuade me otherwise, directions will be required for them to provide further submissions and for the claimant to respond.

Disposal

[117]I dismiss the claimant’s application dated 11 May 2018 and will record that it was totally without merit.[118]I strike out both claims in their entirety pursuant to CPR r.3.4(2)(a).[119]In relation to the ABH claim (claim number D90MA175), I will record that it was totally without merit.[120]If the defendants seek to persuade me that I should make a civil restraint order, there will need to be directions for the provision of further submissions.[121]I invite Counsel to seek to agree an order that reflects my judgment. If they are unable to do so, they should provide alternative drafts for my consideration.