Hersi & Co Solicitors & Anor v The Lord Chancellor [2018] EWHC 946 (QB)

“51. In 2009/2010 the Claimant had identified underpayment and caused additional payments to be sent to the 1st Defendant. 52. The Defendant was rated Category 1 in audits between 2004 and 2010. After that Claimant had changed policy without any change of the contract and decided to reclassify what was regarded as extremely acceptable to very unacceptable. This was due to change of government policy. 53. There was agreement for the Defendant to re-enter data into the data base and send files for assessment where exceptional threshold was reached. The First Defendant intended to do this when his other litigation against the Claimant concluded. However, that other litigation was delayed by the Claimant by six years by providing a fraudulent evidence in that other litigation. 54. Between 2004 and 2010 the 1st Defendant held a contract with the Claimant (then LSC, Now LAA, SoS, Lord Chancellor and MOJ) to provide publicly funded legal services. This contract was worth up to £430 000.00 a year to the 1st Defendant. In January 2010 1st Defendant submitted a tender for a new contract, in essence to renew the existing contract. That tender was worth up to £1.7 million a year and up to £3 million over a three-year period (2010 to 2013). In June 2010 the LAA assessed 1st Defendant’s tender as being unsuccessful because the bid (tender) was defective/deficient. To be more precise it was alleged that the 1st Defendant’s tender application form was about 1% incomplete. In November 2010 the 1st Defendant commenced legal action (Judicial Review) against the Claimant in the Administrative Court (hereinafter the “other litigation”). That other litigation has now been transferred to the Technology and Construction Court. In that “other litigation” the 1st Defendant is seeking damages. Since that time the Claimant argued that the law did not permit it to allow the 1st Defendant to correct or cure the defects in his tender. (Further details of that other litigation given in the attached grounds for judicial review). 55. The 1st Defendant has spent approximately several thousand hours on that other litigation. This was extremely important for Hersi & Co because that other litigation involves a claim for more than £2 million pounds. That litigation has been ongoing from 2010 to now (nearly 6 years). The 1st Defendant spent the vast majority of his working time on that litigation. Whether Hersi & Co survives depended on the outcome of that other litigation. As a result of that the 1st Defendant asked employees of the Claimant (Account managers) that Hersi & Co will complete the billing when the other litigation had concluded. The response from the Claimant’s employees were not unfavourable. 56. The 1st Defendant worked on the assumption that Claimant was content to the billing to be completed once the other litigation had concluded. In this respect there was an agreement between the 1st Defendant and the Claimant that the billing would be completed once the other litigation had concluded. The Claimant failed to honour that understanding and agreement. 57. Hersi & Co always intended to complete the billing for the remainder work once the other litigation had concluded. 57a. The Claimant’s tortuous conducts had prevented the 1st Defendant from completing the billing of some files as he planned originally. It knocked the 1st Defendant off course 58. The conclusion of the other litigation proved impossible so far due to a fraudulent conduct on the part of employees of the Defendant or its agents. That is 5th to 16th Parties. Particulars 59. In September of 2013 an employee of the Claimant MOJ Michael Rimer (employed barrister, Head of Litigation) filed a statement in Administrative Court in the High Court of Justice. 60. In his statement Mr Rimer stated: In the annex to the Defendant’s Amended Grounds of Resistance dated 6 September 2013 at page 31 relating to Firm No 1, Aman Solicitors, Disclosure Ref 10, states: “This related to a bid outside the London area (in Birmingham)-it had no affect on others scoring 53 as all which scored 53 received a pro rata allocation of NMS. Organisations in this access point scoring 48 above were also offered contracts subsequently due to the administration of another firm which means that this bid would be successful based upon the original answers given. The Claimant (in its request for further disclosure relating to this firm), has confused this firm’s tender in Birmingham with its bid in the Luton area (outside London). The firm did not originally receive a contract in Luton and its appeal (see annex A above) did not succeed as it did not score enough points. However, as a result of a firm of the Luton area having its award of a contract withdrawn in August 2010, Aman being the next ranked bidder, obtained a contract for 35 asylum matter starts and 15 immigration matter starts in Luton.” 61. The 1st Defendant made a complaint about Mr Rimer to the Bar Standards Board. That complaint is pending. 62. The 1st Defendant asked Mr Rimer to correct that statement because it was false and it was a statement that could not have been made in good faith. Mr Rimer failed to correct that statement. Mr Rimer did not assert that statement was true. Instead he had asked the Legal Director to respond to the correspondence alleging falsity of that statement. 63. In correspondence dated between January 2014 and September 2015 the Claimant’s employee (Ruth Wayte, the Legal Director of the Legal Aid Agency) provided deliberately or recklessly misleading statement to the High Court and to the 1st Defendant. In the same period Ruth Wayte was engaged in a conduct calculated to harm the Claimant. This conduct was either deliberate or reckless. 64. In various interactions between 1st Defendant and Mr Anthony Lawrence of (an employed solicitor of the Claimant) between January 2014 and June 2016, Mr Lawrence provided deliberately or recklessly misleading statements to the High Court in respect of the other litigation. In particular wrote a witness statement in January or February 2016 which stated that a firm called Aman Solicitors was awarded a contract because another firm had its offer of contract withdrawn. He also stated that other firm was later also awarded a contract. This statement was false and could only have been made dishonestly or recklessly. There is objective evidence which demonstrates that. The statement was not written in good faith. It was intended to harm the 1st Defendant. It provided deliberately misleading statement to the High Court and to the 1st Defendant. In the same period Anthony Lawrence was engaged in conduct calculated to harm the Claimant. This conduct was either deliberate or reckless. This conduct related to failure to respond to various correspondences from the 1st Defendant and the positive act of writing witness statements which he knew were untrue. This is in respect of the circumstances which led to the award of contract of the firm called Aman solicitors and Advocates in Luton in 2010. 65. Between June 2011 and 2016 Mr Jonathan Flewer wrote various letters, emails and witness statements which were designed (either deliberately or recklessly) to mislead the High Court or the claimant; and First Tier Tribunal in respect of Appeals under the Freedom of Information Act 2000. In particular it repeated the false statements which Mr Rimer had made (see above). 66. Further details of this are provided in the attached letter before claim of 21 January 2014 (Annex A). And Annexes B, C & D. 67. The various conducts concerned amount to the tort of misfeasance in public office. 68. The Claimant’s claim is brought in order to distract the 1st Defendant from completing his other litigation or pursuing other complaints. 69. The decision of the Claimant to commence the claim for breach of contract was not made good faith. It was made in bad faith. It is unlawful on public law grounds. If such unlawfulness is established then the claim should be dismissed. 70. The 1st Defendant was willing and is willing to set a timetable for completing the billing within an agreed time. Other firms were given up to 10 years to file their final bills. The conduct of not giving the 1st Defendant t similar leeway is discriminatory There were exceptional circumstances which prevented the 1st Defendant from completing the billing. 71. The 1st Defendant cannot conduct both litigations at the same time because he is a sole practitioner. In particular given the protracted nature of the other litigation. Therefore, the Claimant is invited to agree stay of proceedings while the other litigation concludes. Any refusal of such state would breach Article 6 of European Convention on Human Rights. It would be a denial of fair trial. 73. The 1st Defendant was the victim of constant and torrent misfeasance and fraud by the additional parties (5th to 16th) every number of years (2010 to 2016). That conduct prevented him from concluding his other litigation within a reasonable time. As result prevented it from focusing on submitting bills for aged files 73.a) Between 2010 and 2016 the 5th to 15th parties engaged in a conduct designed to harm the 1st Defendant in that it failed to obtain key evidence which they were under a duty to obtain and disclosed to the 1st Defendant 73.b) Between 2010 and 2016 the 5th to 16th parties committed the tort of misfeasance in public office (or tort of deceit or the tort of intentional infliction of economic loss) through their conduct in various civil actions brought against their employer (or client in the case of 16th party) 73.c) this was done through i. Responses to letters before claim written by those parties in relation to those civil actions brought against the LSC/LAA between 2010 to 2016 or Tribunal proceedings involving MOJ or LAA (hereafter “civil actions”). Those civil actions concerned claims (or threatened or prospective claims) by solicitors or other bidders to the effect they should have been awarded civil contracts. Or the LSC/LAA unreasonably or unfairly failed to award them a civil contract between 2010 to 2016. In particular (but not limited to) bids submitted for the 2010 civil contract round. ii. Other correspondence written by those parties or contributed to by those parties in relation to those civil actions. iii. Omitting to respond (either deliberately or recklessly) appropriately by those parties in relation to correspondence (and emails) concerning those civil actions. iv. Witness statements written by those parties (or contributed to by those parties) in those civil actions. v. Pleadings written by those parties or contributed to by those parties in the same selections. vi. Oral evidence given by those parties in those civil actions. vii. Schedules of evidence drafted by those parties (or contributed to by those parties) in those civil actions viii. Instructions provided to counsel by 5th to 15th parties or contributed to. ix. Cases presented to court by those parties or contributed to. x. Omitting to contact the court where necessary in order to correct misleading evidence that was presented to court by those parties or contributed to by those parties. xi. Approving skeleton arguments which contained incorrect factual statements which were provided to the courts in those civil actions. xii. Suppressing vital evidence, manipulating evidence, falsifying evidence and failing to comply with CPR rules in respect of standard disclosure. xiii. Failure to disclose evidence that was adverse to its cases. xiv. Failure to adhere to the duty to not mislead the court. xv. Failure to comply with duty of candour in respect of judicial review claims. 73.d) The 5th to 7th Parties are vicariously liable for the conduct of their employees as well as be liable in their official capacity or institutional capacity. Particular issue concerning the 15th Party 73.e) The 15th Party wrote an email dated 11 November 2010 (at 17:02) (addressed to raheel.latif@amansolicitors.com. This was not written in good faith and it was intended to harm a class of people including the 1st Defendant. The email contains information which could only have been placed there dishonestly or recklessly. (copy of the email is attached. Defamation issue 74. The Claimant wrote to dozens of the 1st Defendant’s clients and informed them that the 1st Defendant was “intervened” by the law society and closed down. It advised the clients to seek alternative legal advice from other providers of legal advice. 73. This took place beween the years 2011 and 2014. This conduct amounts to a defamation and claimant is entitled to damages in respect of this defamation. 74. The 1st Defendant also believes this belief caused the Claimant to not seek any repayments for some years. Therefore, the vast majority of the claims of the Claimant are time barred. They are outside the time limit for this kind of action. Despite that the 1st Defendant may be willing to not raise this issue if he is given an agreed time (which is acceptable to him) for filing the final bills once his other litigation concludes.”

“A. Your claim was not pleaded satisfactorily. I reject the notion that you can explain this away because your specialism is in immigration law. Any competent solicitors’ firm ought to be able to explain its own case directly. B. Nevertheless, it is often not easy to determine whether a claim, especially where there is a request to be allowed to re-plead the matter, should be barred because it would contravene the principle of witness immunity. In the present case I think the question whether the Master applied the law correctly is not open and shut. For that reason only I have given permission to appeal. You must not assume that your appeal will succeed.”

“… a computer malfunction or technical glitch on the part of the LSC was responsible for the decision not to award at least 33 points and a contract to Hersi & Co solicitors.”

“The substantive issues could not be more straightforward. As part of the tender, there were 7 particular questions, grouped under the heading 'Selection Criteria', which all applicants were required to answer. The claimant answered the first three, but then left blank the answers to Questions 4, 5, 6 and 7. In consequence, the defendant awarded the claimant no points for its answers to those questions and the claimant's tender failed to gain the required points to justify the award of a contract. The claimant now argues, either that the defendant should have sought clarification of their non-answers, and/or that the answers to the questions were plain from other parts of the claimant's tender and should have been scored accordingly. In addition, the claimant has a wider case in which it seeks to compare the defendant's treatment of numerous other applicants on other aspects of their tenders, so as to allege inequality of treatment.”

“51. In these judicial review proceedings, the claimant was not permitted to pursue the alleged “technical glitch” on the part of the defendant. As far as I have seen, there was never a shred of evidence to support such an allegation. No explanation was ever given for how and why this allegation was advanced in the first place. At the very least, the raising of this unsubstantiated assertion could be seen as an example of the typical knee-jerk response of the failed bidder, blaming the contracting authority, come what may (an approach Mr Westgate [counsel for the firm] was still pursuing in his submissions in reply); at worst, it was an assertion which the claimant knew or ought to have known was untrue. 52. Now the claimant alleges that the information that was left blank in answer to each of Questions 5-7 of the Selection Criteria was already known to the defendant or was apparent from other parts of its tender. It is said that the defendant should therefore have either asked the claimant to clarify the non-answers, or answered the questions itself. There are also wider complaints made by reference to the defendant's treatment of other parts of other tenders which are not obviously connected to the specific criticisms made in respect of the treatment of the claimant's non-answers to Questions 5-7.”

“53. There are 4 witness statements from the claimant's principal, Mr Ahmed Hersi. There were also 5 witness statements from the person at the defendant responsible for this procurement, Ms Melena Ward. Whilst useful as background, I did not find any of these statements to be determinative of the issues I have to decide, which may explain why there was no cross-examination upon their contents. However, for completeness, I should add that, contrary to Mr Westgate's submissions, I did not read Ms Ward's evidence as demonstrating a procurement process that was incoherent or haphazard. On the contrary, given the size of the exercise that was being undertaken, I consider that the process was generally handled in a coherent and principled way.”

“158. With considerable understatement, Mr Westgate described the evidence referred to above as “concise”

“In my view this litigation has been conducted in an abysmally slow and haphazard fashion. No regard has been had to the orders of the court, or to the CPR (which contrary to the belief in some quarters, applies to the Administrative Court just as it applies to all other parts of the High Court). The claimant has been in breach of both court orders and the rules. I very much hope that no case ever comes to trial in the TCC again with a 6 year procedural history.”

“169. For the reasons set out in Sections 4-8 above, the claimant's claim for judicial review fails at every level. 170. For the reasons set out in Section 9 above, the claimant's wider case on equality fails in principle; fails because of other decisions which I follow; and fails on an analysis of the specific comparisons drawn. 171. For the reasons set out in Section 10 above, I consider that the damages claim could never have been made out on the evidence provided by the claimant. 172. For the reasons set out in Section 11 above, I consider that this claim has been conducted in an abysmally slow and haphazard fashion. 173. It will be important to have a hearing either at the handing down of this Judgment or, if that is inconvenient to counsel, as soon as possible thereafter, in order to deal with consequential matters, including the question of costs and the basis of their assessment.”

“3 I start at first principles. Costs follow the event. The claimant has lost completely and therefore the ordinary order would be that the claimant should pay the defendant's costs. I am unable to discern any principle in support of the proposition that until disclosure was completed that means in some way that the claimant should have its costs of pursuing an unsuccessful claim against the defendant. That is particularly apposite here where the large amount of documents which were disclosed were almost all entirely irrelevant to the issues between the parties.”

“Following disclosure in March 2013, it seems to be clear that the claimant would have known, or should have known, that this was a hopeless case. All of the comparators on Questions 5, 6 and 7 demonstrate that the claimant was treated in precisely the same way as all the others who had failed to answer those questions.”

“14 Thirdly, there are other aspects of conduct which, again, I consider justifies the order. The authorities made plain that unjustified personal attacks are something which can trigger indemnity costs. Mr Taylor referred me to evidence in these proceedings in a witness statement of Mr Lawrence of February 2016, in which between Paragraphs 14 and 25 he identifies the conduct of the claimant about which the defendant now complains. It is a pretty extraordinary litany of bad conduct. It appears that the claimant's solicitors lost no opportunity to make formal complaints about the lawyers acting for the defendant. 15 So, there were complaints to the SRA about Mr Lawrence and there were complaints to the Bar Standards Board about Mr Rymer. There were allegations of dishonesty. Mr Westgate said that these matters were simply in written evidence and had not been further addressed, but these matters were not refuted or disowned in any evidence or in any other document. Accordingly, they are matters which I am entitled to take into account. It is also not right to say, as Mr Westgate said, that these matters have nothing to do with costs, because at Paragraph 24 Mr Lawrence made the point that this unjustified conduct in the matter was designed to frustrate and delay the conclusion of the litigation. He also makes the point, at paragraph 25, that these matters have not been raised in the proceedings. That is to say the complaints made by the claimant and raised in these proceedings. 16 So, it does seem to me that those are matters which again warrant an order for indemnity costs. That ties in with the separate point to which I shall return in a moment, namely the application for yet further disclosure made in September 2017. That application was coupled with an application to commit various members of the defendant's legal team for contempt of court. It is claimed that by the time the hearing came before Mrs Justice Jefford wiser counsel had prevailed, but the fact that the claimant was prepared to make extremely serious allegations which were then abandoned, again seems to me to be all of a piece with the conduct complained about in Mr Lawrence's statement. 17 Accordingly, there are a number of conduct matters which I have identified and which, when taken together with the hopeless nature of the case and the hopeless nature of the claim for damages, does seem to me to warrant an order for indemnity costs from March 2013 onwards.”

“82. In England there has never been complete immunity for expert witness evidence, any more than there has been complete immunity for other witnesses. The general principle does not preclude prosecutions for perjury, or for perverting the course of justice, or for contempt of court, or liability for malicious prosecution, or misfeasance in public office: see, eg Darker v Chief Constable of the West Midlands Police [2001] 1AC435.”

“(1) Appellant accepted that there has been a failure to fully particularise his claim as required pursuant to CPR PD 16 para 8, broadly in the respects identified in C’s Reply and DCC and at §23.1-9 of Mr Duncan’s w/s [5/107-8]. (2) The reason for non-compliance is the Appellant’s evident lack of knowledge and skill to draft fully compliant pleadings. He is an immigration (public law) solicitor. He appears to lack the necessary proficiency in pleading common law causes of action; and in particular in addressing appropriately, the requirements of pleading matters such as fraud or bad faith. He settled the DCC as a litigant in person, and although he is a qualified solicitor, the court ought to take his lack of proficiency in private law matters and in pleading common law causes of action in to account by way of explanation for the non-compliance with the rules and practice direction. (3) D has provided further particulars in his witness statement. That is by way of voluntary Part 18 information and particulars. (1) In the circumstances, and taking into account the reasons for noncompliance with PD 16 para 8, and dealing with the matter justly, the approach of the court should be not to strike the counterclaim out for want of particularity, but to provide D with an opportunity to instruct counsel to attend to the pleadings and plead full particulars.”

“27. The need for the applicant to demonstrate a compelling reason for setting aside the grant of permission to appeal reflects the earlier observations of Lord Donaldson of Lymington MR in The Iran Nabuvat [1990] 1 WLR 1115 that the court would require some very cogent reasons for disagreeing with the single Lord Justice's decision to grant permission to appeal. Thus the “cautionary note” in the White Book at 52.9.2: “Save in exceptional circumstances, it is a misuse of the court's resources and a waste of costs for the court to consider the substance of an appeal on some intermediate date between the permission hearing and the full appeal.”

“For my part, unless the nature of the application shows that some decisive authority or decisive statutory provision has been overlooked by the Lord Justice granting permission to appeal, an application would normally have to show that the single Lord Justice had actually been misled in the course of the presentation of an application.”

“It seems to me to be of the highest importance that the court should very firmly discourage the bringing of satellite litigation under the guise of an application under CPR r.52.9. The rule is there to cater for the rare case in which the Lord Justice granting permission to appeal has actually been misled. If he has, the court's process has been abused and that is of course a special situation. There may be cases where, as Longmore LJ indicated in Nathan v Smilovitch [2002] EWCA Civ 759, some decisive authority or statute has been overlooked by the Lord Justice granting permission. But where such a state of affairs is asserted, the learning in question must in my view be plainly and unarguably decisive of the issue. If there is anything to argue about, an application to set aside the grant of permission will be misconceived.”

“It is clear from R (Sabir) v Secretary of State for the Home Department [2015] EWCA Civ 1173 that where counsel knows something and keeps it from the court or makes a positively misleading statement, there will be a breach of the duty of candour which justifies setting aside permission to appeal.”

“The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which he judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn.”

“It is well settled that no action will lie against a witness for words spoken in giving evidence in a court even if the evidence is falsely and maliciously given (see Dawkins v. Lord Rokeby (1873) LR 8 QB255, Watson v. M'Ewan [1905] AC480). If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the words spoken will not lie (see the judgment of Lord Goddard CJ in Hargreaves v. Bretherton [1959] 1QB45). Nor is this rule to be circumvented by alleging a conspiracy between witnesses to make false statements (see Marrinan v. Vibart [1963] 1QB528).”

"… is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say."

“It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators could be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the enquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192: 'the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution or a possible prosecution in respect of the matter being investigated'. This formulation excludes statements which are wholly extraneous to the investigation – irrelevant and gratuitous libels – but applies equally to statements made by persons assisting the enquiry to investigators and by investigators to those persons or to each other.”

“… if these were clearly and directly made in relation to the proceedings in court, for example, witnesses’ proofs of evidence.”

“So far as concerns the principles regarding the immunity of witnesses in connection with judicial proceedings, those principles should be of general application regardless of the particular form of the action. Thus, for example, whether the action is one of defamation or of negligence or, as in the present case, of conspiracy to injure and misfeasance in a public office, the same principles should apply. In Marrinan v Vibart [1963] 1 QB 528 Sellers LJ stated, at p535: ‘Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.’” ‘Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.’”

“My Lords, the judgments in the Court of Appeal were based upon the ground that the arrest of the plaintiff was caused by the evidence which the defendant gave in court and that as a witness may not be sued for what he says in the witness box it followed that the action was not maintainable: if a civil action may not be brought in respect of what a witness says on oath in court neither, it was held, should an action lie in respect of instructions to apply for an arrest. With every respect, I consider that this reasoning fails to give due regard to the nature of an action for malicious arrest. What the plaintiff alleges is that the defendant, acting both maliciously and without reasonable cause, procured and brought about his arrest. The plaintiff is not suing the defendant on or in respect of the evidence which the defendant gave in court. The plaintiff is suing the defendant because he alleges that the defendant procured his arrest by means of judicial process which the defendant instituted both maliciously and without reasonable cause. The fact that in order to procure the arrest someone (who might or might not be the defendant himself) would have to give evidence on oath (see section 4 of the Criminal Procedure (Attendance of Witnesses) Act, 1965) does not have the result that an action, if otherwise sustainable, could not be brought. The gist of the complaint, where malicious arrest is asserted, is not that some evidence is given (though if evidence is given falsely it may be contended that malice is indicated) but that an arrest has been secured as a result of some malicious proceeding for which there was no reasonable cause.”

“It is well-established that the immunity or privilege, where it applies, bars a claim whatever the cause of action with the exception of suits for malicious prosecution (and analogous claims involving malicious initiation of criminal proceedings) and prosecution for perjury and proceedings for contempt of court.”

“92. In Darker v Chief Constable of West Midlands Police Lord Clyde at 456 said that the principles governing the immunity of witnesses in connection with judicial proceedings “should be of general application regardless of the particular form of the action”

“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”

“155. Because the issue is academic in the present case given my conclusions on the substantive merits, I propose to say nothing further on this issue save to observe, with respect, that there may not be that much distinction in substance between the essentials of the tort of (certainly “targeted”) misfeasance in public office in the context of possible disciplinary proceedings and malicious prosecution or malicious arrest. Supperstone J does not refer to Autofocus in his judgment and I venture to think that it may be an issue that may need to be canvassed as to whether the immunity can truly arise when a preliminary report (such as the FIR [Forensic Investigation Report] or the Case Note) is prepared with the kind of malevolence necessary to sustain the tort of targeted misfeasance in public office.”

“The plaintiffs claim damages against the police for conspiracy to injure and misfeasance in a public office. If their claims related only to things said or done by the police officers whilst they were in the witness box they would be excluded by the core immunity.”

“… I consider that the immunity applies essentially to statements made by witnesses in the course of giving evidence and to certain limited but necessary extensions of that principle. The fact that an activity may be intimately associated with the judicial phase of the criminal process, as distinct from the administrative or investigatory function, does not, in itself, necessarily give rise to immunity. Neither the decisions in previous authorities nor the identified objectives of the immunity justifies a rule of the breadth which he identified.”

“To my mind, the rationale which denies immunity to the fabrication or destruction of evidence applies equally to its concealment or withholding.”

“An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognised rule of practice. This does not import that the word ‘fraud’ or the word ‘dishonesty’ must be necessarily used. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.”

“. . . bad faith, or, as it is sometimes put, 'lack of good faith', means dishonesty: not necessarily for a financial motive, but still dishonesty. It always involves a grave charge. It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant. If a charge of bad faith is made against a local authority, they are entitled, just as is an individual against whom such a charge is made, to have it properly particularized. If it has not been pleaded, it may not be asserted at the hearing. If it has been pleaded but not properly particularized, the pleading may be struck out.”

“In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points on which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time … Now, undoubtedly the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, for it was of the very substance of the case there, and prima facie, therefore, the whole is settled. The question then is, whether the special circumstances appearing upon the face of this bill are sufficient to take the case out of the operation of the general rule.”

“The second question depends on the application of a doctrine of estoppel, namely res judicata. Their Lordships agree with the view expressed by McMullin J that the true doctrine in its narrower sense cannot be discerned in the present series of actions, since there has not been, in the decision in no 969, any formal repudiation of the pleas raised by the appellant in no 534. Nor was Choi Kee, a party to no 534, a party to no 969. But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.”

“Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened … Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue.”

“Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”