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England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chief Constable Of Kent v. Rixon & Ors [2000] EWCA Civ 104 (5 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/104.html
Cite as: [2000] EWCA Civ 104

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Case No: CCRTI 99/0987/B1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(His Honour Judge Peppitt QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 5th April 2000
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE SEDLEY
and
SIR CHRISTOPHER STAUGHTON
- - - - - - - - - - - - - - - - - - - - -

	THE CHIEF CONSTABLE OF KENT	Defendant/ Appellant
	- and -
	JULIAN RIXON ROSSLYNE JUNE RIXON (suing as RIXONS SOLICITORS) and NICHOLAS WILSON	Claimants/ Respondents

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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William Edis (instructed by Berrymans Lace Mawer for the Appellant)
Stephen Chippeck (instructed by Rixons for the Claimants)
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE BROOKE:

This is the judgment of the court.

This is an appeal by the defendant, the Chief Constable of Kent, from an order made by Judge Peppitt QC in the Canterbury County Court on 12th August 1999 when he dismissed the Chief Constable's application for an order to strike out the claimants' statement of case, or one or other of the claims, based on different causes of action, that were contained in it. He also refused to give summary judgment for the defendant on those claims. The Chief Constable's applications were made on 22nd June 1999 pursuant to CPR 3.4(1) and 3.4(2)(a), PD 1.4(3) and CPR 24.2(a)(i). The first claimants are the partners in a Folkestone firm of solicitors called Rixons and the second claimant, Mr Wilson, is a solicitor employed by that firm.

In a very brief judgment the judge said that he would be very happy to give reasons for his decision, but since he might well have to decide the case himself in due course, it was better if at this stage he confined himself to saying that he thought the case raised an issue of considerable public importance and that the relevant law was new and its bounds somewhat grey. He granted permission to appeal.

In the ordinary way, when the court is invited to strike out a claim because a statement of case discloses no reasonable cause of action, it simply looks at the statement of case and assumes in the claimant's favour that all the facts stated in it are correct. For reasons which will appear later, such an exercise would not be very profitable in this case, and Mr Edis was willing to allow us to range more widely than the amended particulars of claim in search of the material which Mr Chippeck needed if he was to defend his statement of case successfully.

The material parts of CPR 3.4 are in these terms:

It follows that if, as in the present case, a defendant makes a double-barrelled challenge under both CPR 3.4(2)(a) and CPR 24.2(a)(i) the court will normally start by considering the first challenge, for which it will not need to consider any evidence. If the claimant's statement of case is found to contain a coherent set of facts which disclose a legally recognisable claim against the defendant, the defendant is under the new rules entitled to try and persuade the court that notwithstanding that fact the claimant has no real prospect of success. It is at this second stage that the court will normally have to consider any evidence the parties may adduce.

Things have gone wrong in this case because Mr Chippeck does not appear to have appreciated that he was constrained to set out in the particulars of claim a coherent set of facts which in themselves disclosed a legally recognisable claim. Because of the indulgence shown by Mr Edis, however, we will first set out the factual background to the action and the case disclosed in the amended particulars of claim, and we will then describe the additional material which Mr Chippeck wishes us to take into account. It was common ground that he would be entitled to re-amend the particulars of claim, on appropriate terms as to costs, if this was the only way to salvage his clients' claim, but he had not prepared a draft re-amendment for us to consider.

If this action goes forward to trial, it is clear that there will be a number of disputed issues of fact the trial judge will have to resolve. It is common ground that the police had had occasion to arrest two men called Mainwaring and de Gernier on suspicion of theft, and they were both taken to Folkestone Police Station. On Saturday 28th November 1998 Mr Wilson attended that police station as solicitor to both of them. It is also common ground that Mainwaring was charged and when he was refused bail he became abusive towards the custody sergeant. The police say he also became abusive to one of the officers who had arrested him and complained about Mr Wilson's incompetence, apparently believing that he should have been granted bail. Mr Wilson maintains that his client spoke disparagingly to the custody sergeant in a conversational way and then, in a rather quieter voice, maintained in effect that one of Mr Wilson's professional colleagues would have got bail for him.

The police then say that at this point Mr Wilson asked for a private consultation with Mainwaring and was directed towards the medical room for that purpose. In view of the nature of the request they were not accompanied there. Mr Wilson cannot recall who suggested the consultation, or whether or not the police accompanied them to the consultation room, but he accepts that the police were not present during the consultation.

It is common ground that Mr Wilson knew that Mainwaring had been charged and refused bail, and that after their arrest he and de Gernier had been kept apart and put in different cells. The police contend that Mr Wilson knew that the police would wish to ensure that Mainwaring was not at liberty within the custody area and was not able to communicate with or pass property to de Gernier, both so as to avoid collusion and the passing of unauthorised and unexamined material. The claimants deny that he had that knowledge.

At all events, what happened next is that the police say that Mainwaring was seen at large in the custody area, talking to de Gernier and passing him objects believed to be cigarettes. Mr Williams, a civilian detention officer, intervened, and a fracas then ensued which involved other uniformed police officers as well.

The gist of the rival accounts of what happened next is set out in the relevant paragraph of the parties' statements of case.

The material factual averments in the amended particulars of claim are in these terms:

On the morning of Sunday 29th November 1998 [Mr Wilson] in the course of his duties for [Rixons] attended the custody area of Folkestone Police Station in order to see a client in custody.

[Deleted by amendment]

Without reasonable cause or authority, [Mr Wilson] was excluded from the aforementioned Custody Area and was thereby prevented from seeing his client.

Thereafter and without reasonable cause or lawful authority the decision was made known to [Mr Wilson] that he was not to be allowed entry to see any client detained in the said police station until further notice but in any event not before 30th November 1998.

On 30th November 1998, by way of a letter from [the Kent police] to [Rixons] it was stated that [Mr Wilson] would not necessarily be excluded in the future from Folkestone Police Station but that he would continue to be excluded from the said police station until the outcome of the enquiries."

The alleged causes of action are set out in these terms:

The matters as set out above constitute misfeasance in public office on the part of the [police].

Further or alternatively [the police] owed a duty of care to [Rixons and Mr Wilson] to act reasonably in the carrying out of their statutory function and the decisions to exclude [Mr Wilson] in the circumstances as set out above constituted negligence on the part of [the police].

By reason of the matters aforesaid [Rixons and Mr Wilson] have suffered loss, damage, embarrassment, humiliation, inconvenience, loss of reputation and financial loss."

We have described the Chief Constable as the police for simplicity of style.

Paragraph 9 of the Reply to Defence is the first item of additional material which Mr Chippeck wished us to consider as forming a part of his clients' substantive case. It contains a reply to three paragraphs of the Defence which read:

As the officers were trying to get Mainwaring back to his cell [Mr Wilson] was standing in their path. He was asked by PC Gibson to get out of the way but did not do so until he had been asked again. Whilst waiting for [Mr Wilson] to get out of the way, Mainwaring continued to be violent and assaulted PC Gibson. Only then did [Mr Wilson] get out of the way.

Once Mainwaring had been returned to his cell and had calmed down somewhat he was interviewed about the assaults in the presence of [Mr Wilson].

Thereafter the Defendant's servants or agents, who were faced with a situation in which a prisoner had committed serious assaults against police officers, set about investigating how Mainwaring had been allowed to be at liberty to talk to, and pass objects to, de Gernier. It became apparent that [Mr Wilson] had left him alone without telling any of the officers of the fact and had also appeared to get in the way of officers attempting to remove Mainwaring back to his cell."

Paragraph 9 of the Reply is in these terms:

More light is shone on the way in which Mr Chippeck's clients wish to put their case at trial by a letter which they wrote to the Chief Constable's solicitors' department on 16th December 1998, following the delivery of the Amended Particulars of Claim. This letter reads, so far as is material, as follows:

The reasons why the Chief Constable issued these applications can be found in the Defence and in the affidavit sworn on his behalf by Mr Sherwood, the solicitor acting for him in these proceedings. So far as the law in concerned, his case is set out as follows in Paragraphs 3.1 - 3.6 of the Defence:

locus standi

We will consider the alleged causes of action in negligence and in misfeasance in public office separately.

So far as the former is concerned, we share the difficulty experienced by Mr Edis in seeing how the claimants put their case in negligence, at all events in any way which might disclose a sustainable cause of action. It may be, as Mr Edis believed, that the thinking behind this claim can be identified in a passage in paragraph 25 of Mr Julian Rixon's witness statement in which he says:

In our judgment, the conclusion does not follow from the premiss. A solicitor has no such right. Any relevant right vests in the client and in the client alone, and if the police seek to interfere with the client's right, the client's remedy lies in the field of public law. The claimants have placed no reliance on any interference with a client's right in these private law proceedings they have brought against the police in respect of their alleged financial and other losses. Different considerations of law, procedural and substantive, might arise if the solicitor were removed by force, (albeit token) from a police station which he had entered in right of his client. It is unnecessary to explore those issues here.

Given that the solicitor has no right of the type Mr Rixon asserts, it is not easy to know what to make of the contention in paragraph 11 of the amended particulars of claim to the effect that "the [police] owed a duty of care to [Rixons and Mr Wilson] to act reasonably in the carrying out of their statutory functions". In X (minors) v Bedfordshire County Council [1995] 2 AC 633 Lord Browne-Wilkinson at p 734H - 735A said:

Given that the claimants are unable to identify any right of theirs that has been infringed, it is in our judgment impossible to see how the claimants' cause of action in negligence could succeed, even assuming all the facts in their favour. This is, after all, not a case in which there is a claim in respect of personal injury or damage to property. Their cause of action in negligence depends on the viability of their assertion that if the police carelessly decide to take an operational decision to prevent an identified solicitor from accessing the secure area of a police station to see a client, then the police's carelessness sounds in damages if the solicitors' firm (which is at liberty to send any other solicitor to see the client) suffers financial loss as a result. In the absence of a complaint of dishonesty or malice, to which we will now turn, we do not consider that it would be just, fair or reasonable to expose the police to claims for financial loss of this kind simply on the basis that they had acted carelessly when deciding to exclude a solicitor from the safe area of their police station.

We turn, therefore, to the contention that there is a good cause of action based on misfeasance in public office. In Three Rivers DC v Bank of England (No 3) [2000] 2 WLR 15 Hirst LJ, with whom Robert Walker LJ agreed, said, in effect, at pp 66-67 that in order to succeed in an action based on this tort it must be proved that the defendant committed a deliberate and dishonest abuse of power knowing that, or indifferent to the fact that, the claimant would suffer loss or harm as a result of the defendant's actions. It must also be shown that the defendant had committed some unlawful act.

The way in which a claimant should set out the facts on which he relies in support of his case was described in two later passages in Hirst LJ's judgment. He said at p 98H:

And at p 101G:

Mr Chippeck sought to defend the more or less total absence of any factual material to justify the making of an allegation of dishonesty against the Kent police by reliance on part of the judgment of Lord Woolf MR in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775, where he said at p 793c that after discovery and the exchange of witness statements, pleadings frequently became of only historic interest.

Earlier in his judgment, however, Lord Woolf MR said at pp 792j - 793b:

When the defendant applied for an order to strike out the claimants' statement of case on 22nd June 1999, no witness statements had been exchanged. Apart from alleging that the actions taken in relation to Mr Wilson on Sunday 29th November 1998 were "without reasonable cause or lawful authority", the amended particulars of claim contain no enlightenment at all as to the facts relied on in support of the assertion in paragraph 10 that "the matters as set out above constitute misfeasance in public office on the part of the defendant". Paragraph 9 of the Reply to Defence provides a clue that the police were trying to extract revenge on Rixons rather than carrying our an investigation into Mr Wilson's conduct, but it finishes, bewilderingly, with the assertion that even if such investigation was being carried out, the decision to exclude Mr Wilson from the custody area of the police station still amounted to misfeasance by the defendant.

In his affidavit in support of the present application Mr Sherwood, the Chief Constable's solicitor, puts forward the version of the facts on which the police would rely at the trial. It appears that Detective Inspector Shaw was the officer on duty at Folkestone Police Station that Sunday, and that he will say that he took the decision to bar Mr Wilson from the secure area of the police station while an investigation could be carried out into allegations that Mr Wilson had been deliberately standing in the path of two police officers who were concerned to help the officers struggling with Mainwaring and trying to take him to a cell. Once it was established that the obstruction caused by Mr Wilson was inadvertent, his suspension from the secure area of the police station was lifted.

Mr Sherwood added in paragraphs 8.5 and 8.6 of his affidavit that (1) DI Shaw had told him that he believed that he had the power to exclude Mr Wilson pending the outcome of enquiries, and (2) there was not a shred of evidence to support the assertion that DI Shaw was improperly motivated.

The claimants did not take appropriate steps to re-amend their particulars of claim in order to set out the facts underpinning their plea of misfeasance in public office. Instead, Mr Julian Rixon filed a 15-page witness statement, supported by nearly 70 pages of documents. This huge volume of evidence provides ample justification for the old rule that a party's pleaded case should set out the facts relied on, and not the evidence by which those facts will be proved. The old rule is given new life in CPR 16.4 (1)(a) which states that particulars of claim must include "a concise statement of the facts on which the claimant relies".

Paragraph 10.2 of PD16 also requires the claimant to set out specifically certain matters in his particulars of claim where he wishes to rely on them in support of his claim. These matters include any allegation of fraud, the fact of any illegality, and details of any misrepresentation, but do not contain any reference to the need to particularise any allegation of dishonesty on which a plea of misfeasance in public office is based. The Head of Civil Justice may wish to consider whether any amendment is needed to this part of the Practice Direction to cover this newly emerging tort of dishonesty. However that may be, we have Mr Rixon's statement before us, and Mr Edis did not object to us considering it as part of the claimants' defence to this strike-out application.

Paragraphs (i) to (vi) of this statement set out the facts of the earlier incident. Mr Rixon says that on 15th November 1998 Miss Middleton, another representative of his firm had been with a client at Dover Police Station, when the police "abandoned" her with the client in a corridor of the police station near to a door which opened on to the police station yard. While they were there, another police officer went through the door leaving it unlocked, and shortly after that Miss Middleton decided to go and look for the officer in the case to ask her to hurry up, In the meantime the client escaped through the unlocked door.

Following what seems to have been an unhappy telephone conversation in which Mrs Rixon told a detective sergeant that Miss Middleton would not be making a witness statement (presumably in support of a charge of escape from lawful custody) and the detective sergeant suggested that the police should treat Mrs Rixon's attitude as "obstructive", DCI Ross, the officer in charge of the CID at both Dover and Folkestone police stations, rang the firm. Mr Rixon spoke to him and told him that Miss Middleton was not present and did not see the client escaping because she had gone to look for the officer in the case in order to ask her to hurry up.

DCI Ross then wrote to Mr Rixon asking him to "confirm, in writing, as to the fact Miss Middleton, whilst being present in the custody area at the time of the escape, did not see him leave the custody area via the rear entrance door". Mr Rixon replied in a rather intemperate letter which included these passages:

From paragraph 5 of Mr Rixon's statement it appears that not only did Miss Middleton not wish to make a statement but that his firm believed that two ethical issues were involved. Since the police did not wish to hear about communications between Miss Middleton and her client, the first of these alleged issues was irrelevant. The second was that it would have placed the firm in a professionally embarrassing position to make a statement against their own client. Mr Rixon appears to have overlooked the fact that Miss Middleton was a compellable witness, that nothing she had to say about the client's physical whereabouts at any particular time was protected by legal professional privilege, and that the police were inquiring into the serious offence of escape from lawful custody.

In paragraphs 7-24 of his affidavit Mr Rixon sets out the version of the evidence relating to Mr Wilson's exclusion from the police station on which his firm will wish to rely at the trial. It is sufficient for present purposes to identify the following matters:

Paragraphs 25-44 of Mr Rixon's witness statement mainly contain argument. It contains an assertion that the police were not investigating Mr Wilson's conduct, and that the suggestion that they were was bogus. In paragraph 36 Mr Rixon says, quite briefly:

Three Rivers District Council and Others v The Governor and Company of the Bank of England

Because the dishonesty relied on is not particularised, one has to search around Mr Rixon's witness statement to find out what he has in mind. In the next paragraph he asserts that dishonesty by the police has been revealed in four numbered paragraphs of the defence and paragraph 7 of Mr Sherwood's affidavit. Elsewhere in his witness statement Mr Rixon explains why he believes that those paragraphs of the defence are "totally incorrect" (see his statement, para 11), "completely false" (para 16), and "false" (para 24) and why the relevant paragraph of Mr Sherwood's affidavit is "complete fiction" (para 35).

It therefore appears that the case that the claimants wish to put forward at trial is that Detective Chief Inspector Ross knew that the police had no power to exclude Mr Wilson from the secure area of the police station and knew that he had done nothing on Saturday 28th November which might begin to justify his exclusion, but nevertheless directed his exclusion as a malicious act of revenge for the firm's failure to co-operate a fortnight earlier and with the intention of causing the firm and/or Mr Wilson financial loss.

Even if we were to suppose this is the way that Mr Chippeck would wish to set out his case if he was allowed to re-amend the particulars of claim, there is still the difficulty that the claimants would have to prove that the police knew that they did not have the power to exclude Mr Wilson temporarily from the secure area of their police station.

We have considered this issue earlier in this judgment when we explained that the claimants did not have the rights they asserted. Any relevant right (of access to a solicitor) is vested in their client, and no client of the firm has made any complaint relating to lack of access. We are therefore of the opinion that the plea of misfeasance in public office would be bound to fail, whatever facts emerged at trial. If the police did anything unlawful, it was not actionable by the claimants; and if it was beyond their power to exclude a particular solicitor, the claimants could not show that the police knew this.

Order: Appeal allowed; costs her and below to be paid by the first and second respondents.
(Order does not form part of the approved judgment)

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