Renewed application for leave to appeal against finding of assault by police officers.Court: CA
References:  EWCA Civ 1848,
Renewed application for leave to appeal against finding of assault by police officers.Court: CA
The prosecutor appealed after dismissal of the charges against the defendant as duplicitous. A neighbour couple had accused him of harassment against either or both of them. The magistrates accepted the plea on the basis that there were no two actions alleged against both or either of the couple.
Held: The appeal succeeded. The use of the singular expression in section 1 was to be read to include the plural. It was quit epossible that though only one complainant might have been present on any occasion, the behaviour had nevertheless been aimed at both. It was not always necessary to have a separate charge of harassment in respect of each complainant where a course of conduct comprised of incidents involving more than one individual as the victim. The court decided that it would be appropriate to include more than one complainant in a prosecution where the complainants were members of a
The claimant alleged that the defendant by allowing a flood across a road not to be cleared was in breach of their statutory duty under the 1980 Act.
Held: Though the blockage was not entirely on the Highway, the nature and extent of it was known to the Authority and they were properly found to be in breach.
The plaintiff, a boy, was injured when playing on a derelict boat left on council land. The council appealed an award of damages against it.
Held: A local authority may be liable for injury caused by a derelict boat not removed from their land which attracted children, but not for an injury arising from unforeseeable later dealings with that boat. Lord Woolf MR: ‘Even making full allowance for the unpredictability of children’s behaviour, I am driven to conclude that it was not reasonably foreseeable that an accident could occur as a result of the boys deciding to work under a propped up boat. Nor could any reasonably similar accident have been foreseen. Ironically the state of the boat was so poor that it made it less likely that it would be repairable or that boys would embark on doing the necessary repairs. The photographs of the boat and the evidence of Mr. Hall indicate that it was a fairly heavy structure. It would be by no means easy for the boat to be moved or raised. In deciding whether the accident was foreseeable it is important not only to consider the precise accident which occurred but the class of accident.’
Roch LJ: ‘If a result of its unsafe condition a child had been injured while doing so the subsequent claim for damages would have succeeded. Whether it would have succeeded on the basis of an injury resulting from the mere presence of the boat – as opposed to its unsafe condition – is a separate question which does not arise for decision.’
The court considered whether, and if so, the circumstances in which, police officers may be liable in negligence to suspects for failure to comply with the Codes of Practice.Court: CA
A person who is liable to be detained in a hospital by virtue of an application or order under that Act may either be actually detained or given leave of absence. While on leave of absence it may well be that the patient’s disorder is not such that he needs to be detained in hospital. But he remains liable to be detained, and may be recalled to hospital, unless and until the application or order authorising his detention lapses or he is discharged.Court: CA
A man was locked out of the matrimonial home which he owned jointly with his wife, following a family dispute. The police told him, as was the fact, that his wife and children did not want him to re-enter the house and the police suggested that he leave the vicinity of the property until tempers had abated. He was arrested when he refused to leave and insisted that he wished to enter the house.
Held: Where a constable made an arrest after a breach of the peace had quietened before arriving, but anticipating a further breach, he had to anticipate an immediate or imminent recurrence of a breach to justify the arrest. ‘The common law power of a police constable to arrest, where no actual breach of the peace has occurred but where he apprehended that such a breach might be caused by apparently lawful conduct, was exceptional and should be exercised by him only in the clearest circumstances when he was satisfied on reasonable grounds that a breach of the peace was about to occur or was imminent. There had to be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty the citizen who was not at the time acting unlawfully.’
Beldam LJ: ‘In my view, the words used by Lord Diplock and in the other authorities show that where no breach of the peace has taken place in his presence but a constable exercises his power of arrest because he fears a [future] breach, such apprehended breach must be about to occur or be imminent. In the present case PC McNamara acted with the best of intentions. He had tried persuasion but the plaintiff refused to be persuaded or to accept the sensible guidance he had been given but in my judgment that was not a sufficient basis to conclude that a breach of the peace was about to occur or was imminent. There must, I consider, be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully. The factors identified by the recorder in the present case do not in my judgment measure up to a sufficiently serious or imminent threat to the peace to justify arrest.’
Immunity from suit for abuse of process attaching to judicial process was attached also to steps taken as part of the investigation of a crime with a view to a possible prosecution of the matter. Auld LJ: ‘The whole point of the public policy reason for the immunity is to encourage honest and well-meaning persons to assist justice even if dishonest and malicious persons may on occasion benefit from the immunity.’Court: CA
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had known of his intention to use it as a guest house. The Society now appealed against strike out of its claim for restitution from the solicitors.
Held: The appeal failed. This was not a claim in restitution: ‘any claim to restitution raises the questions: (l) has the defendant been enriched? (2) If so, is his enrichment unjust? (3) Is his enrichment at the expense of the plaintiff? There are several factors which make it unjust for a defendant to retain the benefit of his enrichment; mistake is one of them. But a person cannot be unjustly enriched if he has not been enriched at all. That is why it is necessary to ask all three questions and why the fact that a payment may have been made, e.g. by mistake, is not by itself sufficient to justify a restitutionary remedy. ‘
Damages for assault by police dog.
Held: Though in principle reasonable force can be used in the course of assisting in the arrest of a suspected offender, that must always be reasonable and proportionate. The claimant’s appeal failed. The judge had properly taken account of all matters which he should have done, and no flaw in his reasoning had been found.
The council appealed a refusal to strike out the proceedings. The claimant alleged misfeasance in a planning decision giving a competitor consent to development. He said the mayor had deceived the planning committee as to the need to consider the two applications together.
Held: The requirements for proof of tort of misfeasance were set out in Three Rivers and Bourgoin. The claimant here could not establish evidence of malice in the required way and the claim should be struck out.
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was not appropriate to use this tort in respect of disciplinary proceedings by a local authority against a councillor.
The tenant sought damages from his landlord for interference with his goods on the execution of a distraint for arrears of rent.Court: CA
The plaintiff appealed against dismissal of his claim for malicious prosecution brought against the Service.
Held: Actions for malicious prosecution, against the Crown Prosecution Service are to be examined closely to ensure that they are not a mere circumvention of negligence immunity: ‘The fact that someone in the Crown Prosecution Service may have been negligent or incompetent in the course of reaching a decision to commence or to continue the prosecution – whether by failing to evaluate the evidence correctly at the outset, or in failing to review the evidence after committal or in the light of new material – cannot, in itself, justify an inference of malice. If that is all the evidence that there is, the question of malice cannot be left to the jury. It is because, in many of these cases, that that will be all the evidence there is, an attempt to dress up a claim in respect of negligence or incompetence in the guise of malicious prosecution must fail. ‘ The question to be asked was whether there was ‘a proper case to lay before the court’.
The plaintiffs had sought to claim against the defendants for tort of malicious prosecution The trial had been vacated once on the defendants paying costs, and they made a second application, saying that more days were needed. That application was granted, and the claimants now sought leave to appeal adjournment of the trial.
Held: The application had no prosepct of success and failed. Though applications to adjourn arising from a party’s delay were now to be granted less easily, this was a case which required a full and proper hearing. This was not to give the police a privileged status, but the nature of the claims required a full hearing, which was not available without the adjournment requested.
The defendant solicitors had acted for defendants in an action brought by the plaintiff. They swore and filed an affidavit in support of an application to strike out elements of the action. The affidavit spoke as to abusive and threatening calls and actions from the plaintiff, and of instructions to seek injunctive relief. The plaintiff now sued the solicitors alleging in effect defamation and malicious falsehood. The defendants appealed against the refusal of the judge to strike out the claim.
Held: The appeal was successful, and the claim struck out. The statements complained of were sufficiently close to the matters at issue between the parties to attract protection: ‘it might have been open to Mr. Samuels to apply to have paragraphs 7 to 19 of the affidavit struck out on the grounds of their lack of relevance, but I am in no doubt at all that they are well within the absolute privilege of witness immunity.’
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason of the misappropriation of the business and assets of companies in which he was a shareholder. Leave to appeal was set aside, though such applications would normally be discouraged. There may be special circumstances in which a fiduciary duty is owed by a director to a shareholder personally and in which breach of such a duty has caused loss to him directly (e.g. by being induced by a director to part with his shares in the company at an undervalue), as distinct from loss sustained by him by a diminution in the value of his shares (e.g. by reason of the misappropriation by a director of the company’s assets), for which he (as distinct from the company) would not have a cause of action against the director personally.
Millett LJ said: ‘If this action were allowed to proceed and the plaintiff were to recover for the lost value of his shareholding from the first defendant, this would reduce his ability to meet any judgment which might thereafter be obtained by the liquidators, or by any of the old companies which were not in liquidation, to the prejudice of their creditors. The plaintiff would have obtained by a judgment of the court the very same extraction of value from the old companies at the expense of their creditors that the first defendant is alleged to have obtained by fraud and deceit.’
The Chief Constable appealed against an award of damages for wrongful arrest and false imprisonment. A witness to a robbery had identified the complainant as responsible, but the claimant’s mother had told the officers that her son would have an alibi. After arrest the alibi was confirmed. The claimant was released, but then made his claim, saying that the officers had no reasonable ground for their suspicion.Court: CA
The claimant sought damages for personal injuries. The case he presented at trial differed from that pleaded, and he now appealed dismissal of his claim.
Held: The variation was sufficiently serious to justify the refusal of relief. In fact the claim should be under Occupier’s Liability where the common law duty of care had been superceded. The claim would have failed if properly presented.