England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 97/0376/E

Royal Courts of Justice

Thursday, 27th November 1997

Before:

LORD JUSTICE HIRST

LORD JUSTICE SWINTON THOMAS

SIR BRIAN NEILL

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DAVID ANTHONY DANIELS

Plaintiff

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MRS. GRIFFITHS

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(Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street, London, EC4A 2HD. Telephone No: 0171- 421 4040. Shorthand Writers to the Court.)

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MISS C. BOOTH Q.C. and MR. W. BEARD (instructed by the Smith Llewelyn Partnership, Swansea) appeared on behalf of the Appellant/Plaintiff.

MR. C. VOSPER (instructed by Messrs Douglas-Jones & Mercer, Swansea) appeared on behalf of the Respondent/Defendant.

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J U D G M E N T

(As approved by the Court)

Crown Copyright

This is an appeal by Mr David Anthony Daniels from the Order of Tucker J. dated 19 October l996 dismissing Mr Daniels’ appeal against the Order of Mr Deputy District Judge Williams made on 15 February l995 striking out his claim for damages against Mrs Griffiths, the Defendant. Tucker J. refused leave to appeal against his Order, holding that the claim had been rightly struck out as an abuse of the process of the court but leave to appeal was granted by Brooke L.J. on 27 February l997. I shall call the parties the “Plaintiff” and the “Defendant”.

In l983 the Plaintiff pleaded guilty to a charge of rape and was sentenced to life imprisonment. On 21 June l994 the Discretionary Lifer Panel of the Parole Board considered an application by the Plaintiff for release on parole but this application was refused. He remains in custody.

On 17 February l994 the Plaintiff issued his Writ in these proceedings. The Writ was subsequently amended on 9 June l994 and is now in these terms:

“The Plaintiff’s claim is for damages for slander published by the Defendant to police officers of the South Wales Constabulary between 16 September l992 and 2 October l992.”

The amended Statement of Claim was served with the amended Writ. I should refer to certain paragraphs in the amended Statement of Claim but first I should draw attention to the fact that, if this action continues, the Plaintiff will seek to re-amend his claim to include a claim for damages for libel.

In paragraph 2 of the amended Statement of Claim the Plaintiff pleaded that the Defendant was formerly engaged in a personal relationship with the Plaintiff. The amended pleading continued:

“3. Between the 16th September l992 and the 2nd October l992 the Defendant spoke and published of and concerning the Plaintiff to police officers of the South Wales Constabulary and others, defamatory words to the following effect:

a) that there has never been any form of relationship between the Plaintiff and the Defendant;

b) that the Plaintiff is fixated with the Defendant;

c) that the Defendant has concern for her safety should the Plaintiff be released from custody.

4. As the Defendant well knew, the aforesaid police officers would report her aforesaid words to officers of the prison authorities, and the Probation Service, and the Defendant intended that her words should be published to officers of the aforesaid bodies.

5. The said words in their natural meaning and/or inferential meaning meant and were understood to mean that the Plaintiff was suffering from a mental illness which resulted in him being dangerous.

6. Further or alternatively, the said words by way of innuendo, the Defendant meant and was understood to mean that the Plaintiff was unfit to be considered for parole because he was unstable and dangerous.

(i) The Plaintiff repeats paragraph 1 hereof.

(ii) The Defendant knew enquiries were being made to assess the Plaintiff’s suitability for parole.

(iii) The Defendant knew that the extent of her relationship with the Plaintiff would be considered by the Parole Authorities.

(iv) By denying her relationship with the Plaintiff the Defendant meant and her words were understood to mean that the Defendant was unstable and dangerous.

7. By reason of the publication of the said words, the Plaintiff has been greatly injured in his character and reputation and has been brought into public scandal, odium and contempt and has suffered damage.

Since the 31st January l993, the Defendant has been refused parole and remains in custody. He has consequently lost social security benefits at £45.70 per week.”

The Defence was served on 17 August l994. Here again, however, if the action continues, the Defendant wishes to amend her defence and at the hearing of the appeal reference was made to the pleading in its proposed amended form. Paragraph 3 of the proposed amended defence contains an admission that during l992 the Defendant spoke concerning the Plaintiff to police officers at South Wales Constabulary [words] to the effect that there had never been any form of relationship between the Plaintiff and the Defendant. Paragraph 4 of this pleading contains a plea of justification, which extends to the words alleged in paragraph 3 of the amended Statement of Claim if these words are found to have been spoken. I should also read paragraph 8 of the proposed draft:

“In so far as the Defendant spoke concerning the Plaintiff to police officers of the South Wales Constabulary, (and whether the said officers were making enquiries for the purpose of assessing the Plaintiff’s suitability for parole or were investigating the Plaintiff’s conduct with respect to the Defendant) the occasion and each occasion of such alleged publication was an occasion of qualified privilege”.

On 20 December l994, the Defendant issued a Summons to strike out the Writ and the Statement of Claim. The first paragraph of the Summons was as follows:

“That the endorsement on the Writ and the re-amended Statement of Claim herein be struck out on the ground that they are scandalous, frivolous or vexatious or otherwise an abuse of the process of the court pursuant to Order 18, R.19 of the Rules of the Supreme Court and/or of the Court’s inherent jurisdiction.”

On 15 February l995 the Deputy District Judge made his Order striking out the Writ and the Statement of Claim.

The Plaintiff appealed.

The appeal came first before Jowitt J. He adjourned the appeal to enable the Plaintiff to file an Affidavit exhibiting a copy of the decision of the Parole Board. He also invited the Treasury Solicitor to instruct Counsel to appear for the Parole Board as amicus curiae. The Treasury Solicitor declined this invitation.

The matter came back for hearing before Tucker J. on 18 October l996.

Tucker J. upheld the judgment of the District Judge. As I understand his judgment, he gave three reasons.

First, he held that the proceedings were an abuse of the process of the court because they had been instituted for a collateral purpose. He explained this reason as follows (J.4E):

“I deem the real purpose of this action to be an attempt to persuade the Parole Board that it reached a wrong decision based on inaccurate and untruthful evidence, and it should review and reverse that decision. It is perfectly apparent from the decision of the Panel, a copy of which has now been obtained, that its decision was based on the Plaintiff’s own conduct, no doubt based on the contents of his own letters. I now have before me that decision, and so far as this application is concerned, the relevant part is contained in paragraph 4 of the Board’s letter dated 27th June l994. The material part is in these terms:

‘Whatever the truth about Mrs Griffiths and yourself, the Panel were of the view that your pre-occupation with her is now pathological. The Panel believed that she would be at great risk from you if you were to be released’

That is the decision the Board reached, and that in my opinion is what, by a roundabout route, this Plaintiff is seeking to impugn. Albeit there is no express reference to such a review in the amended Statement of Claim, that is in my view nevertheless its real purpose.”

The second reason given by the Judge for his finding that the action was an abuse of the process of the court was that in his view the action was “also designed and intended to harass and embarrass the Defendant and to cause her further expense”.

His third reason was that the action had in the Judge’s opinion “no prospect of success.” He added “It is, I say bluntly, a hopeless action.”

The Plaintiff has now appealed to this court.

I propose to consider the appeal under two main headings. First, whether the appeal should be struck out on one or more of the grounds given by the Judge. Second, whether the claim should be struck out on grounds of public policy.

Whether the claim should be struck out for any of the reasons given by the Judge.

It will be convenient to consider first the submissions put forward on behalf of the Defendant in support of the Judge’s decision. Counsel developed his argument on the following lines:

1) The court has power both under rules of court and under its inherent jurisdiction to strike out proceedings which amount to an abuse of process.

2) In considering an application to strike out, the court is prepared to look at affidavit evidence and to look at the purpose behind the pleadings.

3) An example of such an abuse of process is provided by a case where a Plaintiff issues a Writ and then maintains the action in being, neither desiring nor intending to bring it to trial, but merely hoping to place a gag upon his critics: see Wallersteiner v Moir [l974] 1 WLR 991 at 1029 per Scarman L.J. It may be noted that this type of abuse of process was considered by Lord Woolf in the House of Lords in Grovit v Doctor [1997] 1 WLR 640

4) That an action will be struck out not only if it is conducted in a manner which amounts to an abuse of the process of the court, but also if it is bought “for some ulterior or collateral purpose” and not bona fide for the purpose of obtaining relief: see Lonrho Plc v Fayed (No.5) [l993] 1 WLR 1489 at 1502 per Stuart Smith L.J.

5) That an action will also be struck out if the Defendant “can demonstrate shortly and conclusively that the Plaintiff's claim is bound to fail”: see Lonrho Plc v Fayed (No.2) [l992] 1 WLR 1 at 5 per Millett J.

6) That the evidence in this case demonstrated that the Plaintiff’s purpose in bringing the proceedings was to bring pressure upon the Parole Board and thereby to secure his release from a sentence of imprisonment. His conduct in bringing the proceedings was a further manifestation of his fixation with the Defendant. Counsel drew our attention to a number of letters written by the Plaintiff to the Defendant, particularly those written by him in l992, and to the fact that the Plaintiff had taken steps to involve the Defendant both in court proceedings concerning his daughter and also in an action he had commenced against a prison doctor.

7) That it was not suggested that there had ever been any real physical contact between the Plaintiff and the Defendant. The only issue of fact was whether the Defendant had entertained feelings of affection towards the Plaintiff which she had then tried to conceal and later to deny.

8) The Plaintiff’s chances of success were minimal and it was to be remembered that the Defendant would be unable to obtain legal aid to assist her in defending the action. The proceedings, as the Judge rightly held, were intended to harass and embarrass her.

I propose to deal with these submissions and the Judge’s reasons compendiously.

It is certainly true that the Court has power to strike out proceedings which are being conducted in a manner which amounts to an abuse of process, or which have been bought for an improper purpose and not in order to obtain some remedy from the court. It is also true that in an exceptional case an action may be struck out if it can be demonstrated conclusively that it is bound to fail. But this power to strike out should be exercised with the greatest care.

In the present case, however, as Counsel for the Plaintiff made clear, his claim that he had a personal relationship with the Defendant has been unwavering. It is his case that at one time the Defendant had strong feelings of affection towards him which she has since sought to deny. The authorities, he claims, treat him as though he had made up a completely fictitious account of the relationship between himself and the Defendant, and, he contends, unless he can establish the true position by means of these proceedings, he has no prospect of correcting this misconception and therefore no realistic prospect of obtaining parole.

The Plaintiff’s action faces formidable difficulties, but I cannot say that the Defendant has demonstrated that it is bound to fail. Nor in my view would it be right to reject as unfounded the Plaintiff’s assertion that he has brought these proceedings to establish the truth and to clear his name. There is an issue to be tried and I am quite satisfied that the issue cannot be resolved by means of affidavit evidence alone. Furthermore, it is to be noted that the writ was issued several months before the parole board reached its conclusion in June l994. Accordingly, with all due respect to the Judge, the action cannot have been brought in order to persuade the Parole Board that it had reached a wrong decision.

It follows therefore that I would not strike this claim out on any of the grounds relied upon by the Judge, or included in the submissions of counsel for the defendant.

Shortly before the date of the hearing in this court, Counsel were informed that, in addition to argument directed to the matters which were canvassed in the court below, the court would wish to hear argument as to whether the action should be struck out on grounds of public policy. For my part I am grateful to both Counsel for the careful arguments which they prepared at short notice on this further aspect of the case.

Here again it will be convenient to consider first the submissions put forward on behalf of the Defendant.

Mr Vosper’s primary submission was that the statements made by the Defendant to the police were made in connection with possible criminal proceedings against the Plaintiff, and were therefore entitled to immunity on the principle recognised and explained by the Court of Appeal in Taylor v The Director of the Serious Fraud Office (22 July l997) (CA Transcript 97 - 1327). The immunity from process extends not only to what is said by a witness in court but also to statements made by witnesses and potential witnesses at an earlier stage when enquiries are being made as to what evidence they can give. The principle was stated in Watson v McEwan [l905] AC 480 by the Earl of Halsbury L.C. at 487 as follows:

“It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice - namely, the preliminary examination of witnesses to find out what they can prove.”

Counsel also referred us to the following propositions set out in the judgment of Kennedy L.J. in Taylor (Transcript 21A):

“1. Whatever the form of action it will be barred if it is founded upon what a witness has said in the witness box, or upon what has been said or done in preparing the evidence for a trial. ( Watson v McEwan; Marrinan v Vibart [l963] 1QB 528.)

2. This immunity is not, like absolute privilege, limited to actions alleging defamation. In criminal cases it applies to prevent any form of parasitic litigation (other than an action like malicious prosecution which relates directly to criminal proceedings) where the statement or conduct relied upon 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 a prosecution or possible prosecution.

( Marrinan v. Vibart; Evans v London Hospital [l981] 1 WLR 184; X v Bedfordshire County Council [l995] 2 AC 633 and Silcott v The Metropolitan Police Commissioner (24 May l996) (unreported)”.

Counsel further submitted that any further publication of the statements to the prison authorities or to the Parole Board was incidental to the primary publication to the police and was also entitled to immunity.

Counsel submitted in the alternative that even if some of the publications were made to the police otherwise than in connection with possible criminal proceedings, and were made for the purpose of providing information to the Parole Board, such communications too should be entitled to immunity on the ground of public policy. There was no satisfactory reason for drawing a boundary between the sentencing functions of the criminal court and the work of the Parole Board. Both were engaged in the same sentencing process. Under the modern practice in a criminal court a victim’s statement is obtained for the purposes of sentence and such a statement would clearly be immune from process. Similarly, a later statement made by a victim for consideration by the Parole Board would also be immune. Though the Defendant in this case was not a “victim” in a technical sense, information supplied by her to the Parole Board for the purpose of their deliberations should be entitled to immunity on grounds of public policy.

I propose to deal first with Mr Vosper’s alternative submission.

At first sight there is some attraction in the proposition that confidential communications to the Parole Board should be protected by absolute privilege. I have come to the firm conclusion, however, that to extend the immunity which attaches to court proceedings to communications to the Parole Board would be unwarranted.

The Parole Board was originally constituted by the Criminal Justice Act l967. At the material time between 1992 and l994 the duties of the Board were those set out in the Criminal Justice Act l991. It may be noted that prospectively, the functions of the Board will be those conferred by Part II of the Crime (Sentences) Act l997.

The Parole Board is a body corporate (Criminal Justice Act l991, Section 32), and its status and capacity are set out in Schedule 5 to the l991 Act. Paragraph 1(1) of Schedule 5 is in these terms:

“The Board shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property shall not be regarded as property of, or held on behalf of, the Crown.”

It seems to me quite clear from a consideration of the history of the Parole Board and its present constitution and functions, that its proceedings cannot be regarded as part of the proceedings of court of law. The special immunity which attaches to the proceedings of courts of law would therefore be inappropriate. As at present advised, I can see no answer to the argument that communications to the Parole Board would be protected by qualified privilege, but I would not extend this privilege so as to make it absolute.

I return therefore to Mr Vosper’s primary submission.

In order to consider this argument, it is necessary to examine such evidence as there is which relates to the statements made by the Defendant to the police.

In paragraph 13 of her affidavit sworn on 14 November l994, the Defendant stated that she first made contact with the police at about the end of l988 when she heard a news report which made her concerned that the Plaintiff’s release might be imminent. At that time she handed some correspondence which she had received from the Plaintiff to a police officer.

In paragraph 18 of this affidavit she referred to two telephone calls which she received on the evening of 22 June l992 which she reported to the police at Clydach. In paragraph 19 she continued:

“On 3rd August l992 I provided a detailed statement to the police making it clear that I had never been involved in a romantic relationship with the Plaintiff. The constant harassment was affecting the health and happiness of my family. My father was quite ill at the time and the constant worry was taking its toll.”

In the following paragraph she referred to letters which she received between August l992 and December l992 which she reported to the police. The police eventually suggested that she should contact her MP or a solicitor.

In paragraph 26 the Defendant summarised the matter as follows:

“I have sought to show by this affidavit the extent to which I have been pestered over the years by the Plaintiff and in desperation I turned to the police for assistance. I have admitted in my defence that I told the police there had been no relationship between the Plaintiff and myself. I have never encouraged the Plaintiff in any way. The complaints I made to the police were not made falsely nor maliciously. I simply want the Plaintiff to leave me alone.”

Further evidence as to the Defendant’s statements to the police in l992 is contained in a letter dated 2 October l992 from a Chief Inspector in the South Wales Constabulary at the Divisional Police Headquarters at Swansea and a letter dated 28th January l993 from the Divisional Commander of the same Division.

The letter dated 2 October l992 was sent to the Plaintiff’s then solicitors and was in these terms:

“I refer to your letter of 16th September l992 and our recent telephone conversations.

I would confirm that Mrs Griffiths has been spoken to by the police and has unequivocally stated that she does not wish to be involved in any way with your client. She re-stated that there has never been any form of relationship between her and Mr Daniels and that the continuing contact by him, solicitors acting for him and the police, is causing considerable distress to her and her family. She also voiced serious concern about Mr Daniels should he be released, when he appears to have what she says is some form of fixation about her.

Mrs Griffiths has been advised to contact a solicitor to act on her behalf in this matter. It would also be fair to point out that she has made certain complaints to the police and these have been forwarded to Leicester Constabulary for their information.

I trust this information will be of assistance to you.”

The later letter dated 28 January l993 was sent to Mr Peter Hain MP. It was in these terms:

“I refer to your letter dated 22nd January l993 concerning [Mrs Griffiths]. In August l992 Mrs Griffiths contacted the police expressing her concern at the persistent contact Daniels was making from HM Prison Gartree by both telephone and letter. A comprehensive witness statement was obtained from her and that, together with a full covering report and copies of the correspondence received by Mrs Griffiths was forwarded to the Leicestershire Constabulary for their attention and for any action they deemed necessary.

You may be aware that the contents of the letter and telephone calls basically request Mrs Griffiths to acknowledge an alleged relationship between them in order to support a future parole application. After careful consideration, there was nothing in the correspondence which formed the basis of any criminal proceedings and the Leicestershire Constabulary dealt with the matter accordingly. Subsequently, a letter was received from Detective Sergeant Looker, the Leicestershire Constabulary Prison Liaison Officer. As a result of that communication a formal letter was forwarded to the Governor of H.M. Prison, Gartree. A copy of that letter, the contents of which are self explanatory, is enclosed for your information. Also enclosed is a report received from the Governor, Mr Parry. You will no doubt recognise that the police powers in this matter are limited and the resolution appears to lie within the prison system.

Mrs Griffiths has, on many occasions, been advised to change her telephone number but, to date, has not acted upon that advice.

I certainly share the concern expressed by Mrs Griffiths of the consequences should Daniels be returned to society sometime in the future and, to that end, a request has been made for the police to be informed at the earliest opportunity of any future decision concerning Daniels’ parole.

I trust this letter, together with enclosures, will assist you in any further action you may wish to take in this matter.

If I can be of further assistance, please do not hesitate to contact me through this office.”

It is clear from this evidence that in August l992 the Defendant made a statement to the police to the effect that she was being harassed by the Plaintiff and that a witness statement was taken from her. The contents of that witness statement and the details of any previous discussions leading to the taking of the witness statement would appear to be covered by the rule as to immunity. The letter of 2 October l992, however, suggests that the communications between the Defendant and the police were not confined to her complaints about the Defendant. Indeed in the second paragraph of that letter the approaches by the police were also, it seems, a matter of complaint.

It may be that when the matter is fully investigated it will be found that all the relevant statements made by the Defendant to the police related to a possible offence by the Plaintiff. On the other hand it may be established that there were statements made by her in two separate contexts, some statements being directed to her complaints about the Plaintiff and some being in answer to enquiries by the police concerning the Plaintiff’s application for parole.

At this stage even the documentary evidence is incomplete. In my judgment it would be wrong to reach a final conclusion as to the precise context in which the relevant statements were made.

In these circumstances I do not think it would be right to strike out the Plaintiff’s claim on the grounds of public policy. The facts are not sufficiently clear to justify such a course being taken. I would, however, repeat the warning which Hirst L.J. gave at the conclusion of the oral hearing that if the action is to proceed to trial, the form of the statement of claim will require very careful reconsideration.

I would allow the appeal.

I agree.

I also agree.

Order: Appeal allowed with costs; amended statement of claim to be served within 21 days.

(Order not part of the judgment of the court)