England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Eady)

		Royal Courts of Justice Strand London WC2
		Monday, 30th July 2001

1. LORD JUSTICE LATHAM: In 1993 proceedings were brought against the appellant by the respondent alleging 42 offences contrary to section 69 of the Animal Health Act 1981. He was convicted on 23rd October 1993 by the Stipendiary Magistrate at Dover and he appealed to the Crown Court at Maidstone. In July 1994, after the respondent's evidence had been called, the court ruled that there was no case for the appellant to answer, allowed the appeal and dismissed the summonses. By a writ dated 23rd September 1997 the appellant claimed damages against the respondent (including exemplary damages) for malicious prosecution, for misfeasance in public office and for infringing his rights under Article 34 of the EC Treaty and Council Directives 77/849 EEC and 81/389 EEC. The respondent applied to strike out the claim for malicious prosecution under CPR Part 3; alternatively, sought summary judgment under CPR Part 24. On 25th January 2001 Mr Justice Eady gave judgment for the respondent under Part 24. The appellant now appeals to this court.
2. At the relevant time the appellant carried on business, inter alia, exporting live animals (in particular, live sheep) to the Continent. Under the regime then in force in this country (to which I will return in more detail later) the appellant was required to apply for a licence in respect of each exportation, providing, inter alia, information as to the address of approved premises at which the animals would be rested and details of the arrangements made for feeding and watering those animals whose international transport was unlikely to be completed within 18 hours. The basis of the respondent's prosecution was that the appellant had identified in his licence applications premises operated by a Monsieur and Madame Plisson as a staging post in France at which the animals he was transporting would be rested, fed and watered. Information, in part provided by the Royal Society for the Prevention of Cruelty to Animals, suggested that this information was false. The summonses accordingly charged him with an offence under section 69 of the Act, which provides:

"A person is guilty of an offence ...

(a)who for the purpose of obtaining a licence ... makes a declaration or statement false in any material particular ...

unless he shows to the court's satisfaction that he did not know of that falsity, and that he could not with reasonable diligence have obtained knowledge of it."

3. At the Magistrates' Court the respondent succeeded without having to call any evidence from Monsieur or Madame Plisson, and in the face of sustained submissions in relation to the provisions of the EC Treaty and the regulations to which I have referred. At the Crown Court the respondent was not permitted to adduce in evidence a statement from Madame Plisson as to the occasions upon which the appellant had in fact used their premises. The court accordingly concluded that there was insufficient evidence to convict the appellant. In effect, the respondent did not oppose that application.
4. The relevant provisions of domestic law are as follows. Section 39 of the Animal Health Act 1981 provides:

"(1)The Ministers may by order provide in the interests of animal welfare for regulating the exportation from Great Britain of animals, and in particular -

(a)for prohibiting exportation without such certificate or licence as may be prescribed by the order; and

(b)as to the circumstances in which and conditions on which a certificate or licence may be obtained.

(2)Without prejudice to the generality of subsection (1) above, an order under this section may include provision for requiring persons proposing to export animals from Great Britain to furnish information about -

(a)the intended ultimate destination of the animals;

(b)the arrangements for conveying them to that destination; and

(c)any other matters which may be specified in the order."

5. The relevant order was the Export of Animals (Protection) Order 1981 (SI 1051 of 1981). The relevant provisions of Article 3 are:

"(1)No person shall export or cause or permit to be exported from Great Britain to any place outside the United Kingdom, the Channel Islands and the Isle of Man any animals except under the authority of a licence in writing granted by the appropriate Minister and in accordance with the conditions, if any, of that licence.

(2)The appropriate Minister in granting or refusing to grant a licence shall have regard to all matters connected with the welfare of the animals intended for export and in particular the appropriate Minister shall not grant a licence unless he is satisfied that the arrangements of transporting the animals to their final destination are such as to protect them from unnecessary suffering.

(3)Any person wishing to obtain a licence under this Article shall make an application to the appropriate Minister in such a form and manner and within such time as the appropriate Minister may require and shall provide the appropriate Minister with the following information ...

(c)the address of the approved premises in which the animals are being, or will be, rested;

(d)the details of arrangements made for feeding and watering those animals whose international transport is unlikely to be completed within 18 hours ..."

6. These statutory provisions were intended, in part, to implement Council Directive 77/489/EEC of 18th July 1977, which was concerned with the protection of animals during international transport. Three of the recitals are relevant. These are:

"Whereas, however, there exist between the national laws at present in force in the field of animal transport disparities affecting the functioning of the Common Market;

Whereas, in order to eliminate the resultant technical barriers to trade in live animals, the laws of the Member States should be harmonised;

Whereas that would accordingly enable action to be taken at Community level to protect animals from cruel treatment during transport."

7. Article 4 of the Directive provides:

"Each Member State shall ensure that, in the case of a consignment to or from another Member State or of exports to or imports from third countries or in the case of transit, the international transport of animals within its territory is effected in accordance with the conditions laid down in the Annex to this Directive ..."

8. Article 5 provides:

"If in the course of international transport it is found that the provisions of this Directive are not, or are no longer, complied with, the competent authority of the Member State in the territory of which such a situation arises shall take the appropriate action to remedy the situation, as far as is possible.

Nevertheless, without prejudice to the implementation of any animal health measures, a consignment of animals shall be detained only when it is strictly necessary for the welfare of the animals."

9. In subparagraph 4 of the Annex referred to it is provided that:

"(A)Animals shall be provided with adequate space and, unless special conditions require to the contrary, room to lay down.

(B)The means of transport and containers shall be constructed so as to protect animals against inclement weather conditions and marked differences in climatic conditions, ventilation and air space shall be adapted to the conditions of transport and be appropriate for the species of animals carried. ..."

(D)During transport animals shall be offered water and appropriate food at suitable intervals. Animals shall not be left more than 24 hours without being fed and watered. This period may, however, be extended if the journey to the destination where the animals are unloaded can be completed within a reasonable period. ..."

10. In order to ensure the implementation of that Directive a further Council Directive 81/389/EEC was promulgated on 12th May 1981. Two relevant recitals are as follows:

"Whereas Article 7 of Directive 77/489/EEC provides for the adoption by the Council of the provisions necessary for the implementation of that Directive; ...

Whereas implementation of Directive 77/489/EEC will not have all the desired effects as long as disparities exist between the Member States with regard to the application of certain provisions on the protection of animals during international transport; whereas it is necessary therefore to adopt Community provisions in this field ..."

11. The relevant Articles of the Directive itself are as follows.

"Article 3

1. Where a Member State finds in the conditions under which the transport is being effected one or more irregularities which jeopardise the welfare of the animals, the competent authority of that State shall forthwith prescribe the measures required to remedy the situation. If the person responsible for transport fails to comply with the instructions of the competent authority, the latter shall immediately have the measures in question carried out and shall recover the costs incurred by such measures in the appropriate manner. ...

Article 6

Additional rules of application aimed at bringing about uniform implementation of Directive 77/489/EEC may be adopted in accordance with the procedure laid down in Article 7 of this Directive. ...

Article 8

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 15 months after its notification. They shall inform the Commission thereof."

12. The essential basis of control envisaged by the Directive on its face was a system of certification, so that each transport of animals would be accompanied by a certificate which would identify the source and destination and would enable, it was anticipated, appropriate policing of that particular transportation. The wording of the Directive suggests that the policing of the requirements of the Directive and of the certificate were to be the responsibility of the Member State within which the transport was at the relevant time taking place.
13. The basis of the appellant's case against the respondent is that domestic law goes further, to the knowledge of the respondent, than is necessary to comply with the Directives and is in breach of Article 34 of the EC Treaty as being a quantitative restriction on exports. It is accordingly, in the submission of Mr Newman QC, on behalf of the appellant, unlawful as a matter of Community law. The appellant's case is that this was a matter which was the subject of considerable discussion within the respondent department during the 1980s and that, despite the fact that views were strongly expressed to the effect that the domestic legislation was unlawful, the respondent proceeded with the prosecution of the appellant, at least in part, for the improper motive of appeasing the animal welfare lobby. The prosecution was, it is therefore submitted, brought without reasonable and proper cause in that it was not brought in the honest belief of the validity of the case against the appellant, and the respondent acted with malice in the sense that the respondent acted for the improper motive to which I have already referred.
14. There is no dispute as to the appropriate principles of law which are to be applied by the court in this case. It is accepted on behalf of the appellant that he has to establish that on the material before the court there is a case capable of going to a jury, which, if properly directed, could conclude that there was no honest belief in the validity of the prosecution and that it was brought for an improper motive. It is equally accepted by both the appellant and the respondent that this court should approach the question raised by this appeal, which is whether or not this matter should proceed to trial, with the words of warning from Lord Woolf in Swain v Hillman [2001] 1 All ER 191 well in mind. Lord Woolf said:

"... the proper disposal of an issue under Part 24 does not involve the judge conducting a mini-trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily."

15. It is an essential background matter for this court to bear in mind that, prima facie, this appellant is entitled to have the issue which is raised by his pleadings dealt with by the court and, in this case, because it is an action based upon malicious prosecution, decided with the help of a jury. Accordingly, it seems to me that this court should approach with caution the assessment and evaluation of the material that is before it. In particular, it should eschew any attempt to evaluate the credibility or reliability of the evidence which has been put before the court, as otherwise it may trespass upon the territory of the fact-finder - that is, in this case, the jury at trial. The material which has been put before the court, and which was before the judge, consists of the pleadings and witness statements from Mr Corbett, on behalf of the respondent, and Mr Duke-Cohan, a solicitor who acts for the appellant.
16. It is perhaps helpful to identify the basis upon which the prosecution came to be brought, as given by Mr Corbett, as laying the background to the issues in the case. Mr Corbett explained that the case was originally drawn to the respondent's attention by a radio and television programme which had been made about the welfare of animals en route to destinations in the European Community. A number of journeys had been tracked and timed with the assistance of the Royal Society for the Prevention of Cruelty to Animals, which included two which had been carried out under licences obtained by the appellant. A full inquiry was then initiated, which produced sufficient evidence, in Mr Corbett's view, to justify the 42 summonses, each relating to an application submitted by the applicant which Mr Corbett considered to contain false declarations regarding the arrangements that had been made to feed and water the animals. The majority of the journeys in question were to destinations in France and some were to Italy. In particular, evidence was obtained to show that, although arrangements were said to have been made for the animals to be fed and watered at the premises of Monsieur and Madame Plisson, no such arrangements as were detailed had been made and no stop took place at which the animals were fed or watered. This evidence was, in particular, from Madame Plisson and her records.
17. The appellant does not, for the purposes of the present appeal, seek to challenge Mr Corbett's conclusion that this material was sufficient to amount at least to prima facie evidence of the commission of the offences for which the appellant was summoned. The gravamen of the appellant's case, as I have already indicated, is not that the evidence was insufficient to justify prosecutions based upon charges in domestic law, but that the respondent, through its officials, knew that domestic law would be declared unlawful by the European Court or that there was a real risk that it would be, so that they had no honest belief in the validity of the prosecutions. The only conclusion, therefore, must be that the proceedings were simply brought in order to pander to the animal welfare lobby.
18. That was an argument which was re-enforced, according to Mr Newman QC, on behalf of the appellant, by the fact that, as far as we are aware, these are the only proceedings which have ever been brought under this legislation. It was a prosecution which was brought in the early months of 1992, at a time when it was envisaged that the provisions in question were in fact to be superseded by new provisions, which in the event were based upon an order made in April 1992 which came into effect in 1993.
19. The prosecution process itself, Mr Newman submits, carried with it the inference that the respondent was not acting in good faith. That submission is made because it was apparent to the appellant before the hearing before the Stipendiary Magistrate that there was material (which indeed the appellant had been asking for throughout the period leading up to the hearing itself) which would not be disclosed because, it was said, of public interest immunity. We are not told precisely upon what basis public interest immunity was being claimed, and no issue was tried by the Magistrate in relation to that. The assertion of public interest immunity was simply accepted, and none of the documents were at that stage disclosed. Mr Corbett in his witness statement asserts that that was on the advice of counsel, but we are not told whether or not Mr Corbett himself had seen all the relevant documents, whether counsel had seen all the relevant documents, whether the claim was made in relation to a class of documents, or whether it was on the basis of any other form of immunity.
20. The Stipendiary Magistrate, as I have indicated, convicted the appellant after a hearing at which detailed arguments as to the validity of the domestic legislation were deployed. He came to the conclusion that the domestic legislation was in fact not in disconformity with the European legislation. He relied, we understand, on the provisions of the then Article 36 of the Treaty, which provided, among other things, for the Member States' entitlement, despite the provisions of Article 34, to put in place measures which were justified on the grounds of public morality or the protection of the health and life of animals.
21. The appeal to the Crown Court was conducted on behalf of the Crown by different counsel from counsel who had advised at the Magistrates' Court. He took the view that a significant tranche of documents should be disclosed to the appellant, but they were not disclosed on one single occasion. A tranche of 15 lever arch files was disclosed shortly before the hearing at the Crown Court. At the hearing itself a further small file was produced. That file contained documents which included correspondence between the European Commission and the United Kingdom Government, between officials within the United Kingdom Government, and between Ministers and the Commission. It is quite plain from the material that was disclosed that the respondent's officials considered that the provisions of domestic law went beyond what was required for strict compliance with the Directives, but were prepared to argue that it was nonetheless justified.
22. The European Commission first complained about the domestic measures in August 1982; but it is clear that at that stage they had misunderstood what the effect of those measures was, and that particular complaint never proceeded further. However, in May 1984 the respondent received a letter from the European Commission which indicated its intent to invoke the provisions of Article 169 of the Treaty, which could result in a Commission complaint to the European Court that the provisions of domestic law were incompatible with the Treaty and therefore unlawful. That letter produced a response at two levels. There was a response by the Minister, Mr Jopling, on 21st June 1984, in which he sought to persuade the Commission that it would be inappropriate for the matter to proceed as envisaged by the Commission because of the political difficulties that that would create both for the United Kingdom Government and the Commission. He pointed out that the provisions of domestic law were provisions which were intended to give appropriate effect to the concerns of the animal welfare movement and that, if it was seen that the Government was in any way diluting the provisions of the regulations, that would create significant problems for the United Kingdom Government. Equally, if it was seen by the public in this country that the Government was acting at the behest of the European Commission, there would be a significant disadvantage to the European Community and its standing in this country. Shortly after the letter from Mr Jopling, which was the response at a political level, a reasoned legal response was provided to the Commission by a letter of 10th July 1984. In that there was a detailed refutation of the Commission's case and argument based upon the entitlement of the United Kingdom Government to legislate for measures which were greater than was necessary for the Directive.
23. It is clear that considerable concern was being felt within the respondent department as to the validity of the defence that was being run to the complaint by the Commission. The first document in point of time is a memorandum from a Mr Ryder of 6th July 1994, in which the following passage appears.

"Frankly, we have already played into the hands of the RSPCA, who seem to have no evidence of cruelty or unnecessary suffering, by introducing a Directive and national measures and administrative provisions which contain detailed controls which are impractical to operate and unnecessary to protect animal welfare."

24. That was the expression of concern given at the same time as the response to the European Commission's letter.
25. But that concern was reiterated some months later in 1985, when clearly the anxiety in Government circles was that the European Commission might in fact proceed from the letter which had been written in May to a consideration of formal steps under Article 169, and in particular the delivery of a reasoned opinion. On 5th March 1985 Mr Ryder penned another memorandum. He again referred to the practical difficulties of implementing the 18-hour rule, which was unique to the United Kingdom and did not accurately reflect the 24-hour provision in the Directive. He commented:

"In other words we are in a quite untenable position because - without veterinary justification or legal authority - we are purporting to `require' those taking animals more than 18 hours to feed and water en route - and in premises `agreed as suitable' to boot!"

26. This was followed by a letter of 22nd March 1985 to the Cabinet Office from a Mr Burne, which contained the following passage:

"At the turn of the year, after some six months of silence from all Commission sources, we sought our Minister's views on the tactics and future handling of this dispute. We are in no doubt that should the Commission press this case in the European Court we would lose. As you know, specific licensing - the method we chose in our 1981 Order to implement our obligations under the two Community Directives governing the welfare of animals in transit - is anathema to the Commission. There are other requirements in the body of the Order itself and in the licences granted under it which could also be swept away. The central choice for Ministers therefore lay between suing for peace at an early stage with the Commission, seeking a negotiated settlement: or awaiting further developments."

27. Later on in the letter he stated as follows:

"You and other colleagues may have seen references in the press recently to a `Complaint' by the RSPCA about our export measures. The Society has kept up a vigorous campaign against the Ministry over its policy on exports of live animals. The Society wants this trade to stop. They have conducted countless trails of our consignments of calves going to France. The RSPCA have produced no evidence of animal suffering: rather, their entire approach has been to demonstrate - by gathering a mass of detail on times and routes followed - that animals are not being fed and watered as our licensing system purports to insist. We have taken up aspects of the Society's trails with the French veterinary authorities. They have consistently reported that the animals arrive in good shape at their final destinations."

28. There was then on 11th April 1985 a formal notification from the European Commission of a complaint made by the RSPCA concerning the transport of live animals, as had been presaged by the letter from Mr Burne. The indication was that the Commission was closely examining the material which the RSPCA had put forward.
29. On 14th June 1985 Mr Ryder again penned a memorandum, in which he said the following:

"Dr Boos's [a Commission official] declared view (which I suppose we might expect to be propounded as the Legal Service view in Chefs de Cabinet) is that there is no link between the 169 case and the RSPCA complaint. He considers that the Commission's previous investigation has revealed a clear UK infraction under a key article of the Treaty (Article 30), for which we ought to be brought to book: if (as he supposes will in all probability be the case) the RSPCA complaint identifies further infractions, then in Boos's view these should in their turn be pursued against us."

30. On 21st June 1985 Mr Burne again wrote to the Cabinet Office. In his letter he indicated that it was clear that the Commission was still contemplating the Article 169 proceedings but was seeking a way in which both the United Kingdom and France could meet the allegations made by the RSPCA.
31. There was then further correspondence in which it was clear that the Government considered that it was being squeezed from the one side by the Commission's view that the legislation was unlawful and from the other by the RSPCA, who considered that the legislation did not go far enough. In a document of 28th June 1985 Mr Burne put it in this way in relation to the Commission's attitude:

"The Commission have taken the narrow and doctrinaire view that we have no right under the Treaty to license the trade as the administrative means of ensuring that all the pre-export welfare conditions in the two Community Directives are met. Separately, however, the RSPCA has submitted more recently a detailed (though essentially faulty) complaint to the Commission, arguing that we have not fully implemented our obligations and are doing too little to protect animal welfare."

32. Later on in the memorandum he said:

"We gather that there are continuing battles within the Commission at official level between the Legal Services who want to pursue a hard line with us on licensing: and others closer to farm animal welfare policies and politics who think we should be left alone."

33. As it happened, no further steps were taken by the Commission during the rest of that year. But in October 1985 there was a further memorandum penned by Mr Ryder, which is in the following terms:

"However I thought you would be interested at this stage to see how clearly this trail highlights the very difficulties over our 18-hour rule which we have exposed in our draft submission. Nothing about the length of the journey or the lack of feeding arrangements involves a prima facie contravention of the Directives. But our 18-hour rule (and its implication that we are responsible for ensuring that animals are fed in accordance with it) enables the RSPCA to make mischief ..."

34. In other words, he was reiterating his view that the 18-hour rule was an unworkable provision.
35. Shortly thereafter, on 28th October 1985, there was a meeting at which the Minister and the Parliamentary Secretary discussed the various departmental memoranda with which they had been provided. A memorandum clearly stated the political problems for the Government in the following terms:

"However, although the evidence indicated that such a system of feeding after approximately 24 hours would be kinder to the animals than one of feeding after 18 hours with an onward journey of 30 or more hours, the Minister and the Parliamentary Secretary felt that in political terms they could not move from the commitment to feeding after 18 hours. The rational arguments against a stop after 18 hours would not be listened to: the Government would be seen to be imposing further hardship on calves which many thought should not be exported in the first place."

36. Thereafter, it is apparent from a letter from the Office of the United Kingdom Permanent Representative to the European Community of 13th August 1986 that the Commission had decided to close the file on its own action under Article 169. Accordingly, there was no longer any threat that the Commission would itself take the matter to the European Court. However, the RSPCA complaint remained. Indeed, it was formally opened by the Commission on 11th March 1987, and a formal infringement letter was sent on 6th April 1987. But eventually, at the end of 1987, it was clear that the Commission was satisfied by the answers that the United Kingdom had provided to the detailed complaints that had been made, and that complaint was also laid to rest.
37. Relying on that material, Mr Newman submits that it is quite apparent that the officials of the respondent were clear that the detailed requirements which had been made in the Order in 1981 were requirements which were essentially to placate the animal welfare lobby; that they were not predicated in reality upon animal welfare considerations, and were probably in breach of Community law. He submits that to prosecute, as the respondent did, against that background in 1982 - and against the background also of the failure to disclose the documents until the Crown Court hearing - is evidence from which it can properly be inferred that the prosecution was brought without any honest belief in its validity. He submits that that is a conclusion to which a court and a jury could properly come, in particular because of the way in which the prosecution acted at the Crown Court. As I have indicated, what occurred at the Crown Court after that material had been disclosed was that an application was made for Madame Plisson's evidence to be adduced in written form, together with the records of her business, on the basis that she was, as we understand it, too ill to travel to court. The judge refused to allow that material to go before the court, and it was in those circumstances that the submission of no case to answer was made and was not opposed by the respondent. The fact that it was not opposed by the respondent, Mr Newman submits, is an indication of the lack of any honest belief that the respondent had at that time in its validity, because at the Magistrates' Court the respondent had been prepared to proceed even without any evidence from Madame Plisson or her documents.
38. The evidence from Mr Corbett was to the effect that, as far as he was concerned, he was faced with clear evidence of breaches of domestic law. He was not aware in the first instance, when the decision was taken to prosecute, of the views which had been expressed by some officials in 1985 and, when he was made aware of those views, he considered the matter but concluded that nonetheless it was proper for him to proceed.
39. The judge, having considered all the material to which I have referred and the evidence of Mr Corbett, came to the view that there was nothing in the material that he had seen to gainsay Mr Corbett's assertion that he had made a proper and reasoned decision which could not be categorised as one which was anything other than an honest belief in the validity of the prosecution and was not a decision which was based upon any improper motive. It was on that basis that the judge determined to give judgment for the respondent under Part 24 of the CPR.
40. It seems to me that the judge went too far in relying, as he did, on the untested assertion of Mr Corbett. Mr Newman, on behalf of the appellant, is in my judgment right to say that, in relying as he did on his assessment of the extent to which Mr Corbett's evidence could be capable of being undermined by cross-examination, based upon the material that was before the court, he trespassed on the task of the jury at trial. In my judgment, in these proceedings the proper approach of the court is to consider the material which is pleaded (which includes the references to the internal memoranda and documents to which I have referred and the pleaded behaviour of the prosecution at and before the Magistrates' Court and at and before the Crown Court) in order to determine whether on the basis of that material a jury, properly directed, could come to the conclusion that there was no reasonable and proper basis for the prosecution and that there was evidence of malice.
41. When approaching that question, I do so on the basis that Mr Corbett was confronted with the fact that there was, prima facie, a breach of domestic law properly established on the evidence before him which could justify a prosecution. It was only the element of Community law which cast any doubt upon the propriety of the prosecution. It seems to me that, when looked at in that light, it is extremely difficult to see how the evidence which has been put forward as the appellant's case can in any way raise the spectre of dishonesty or malice which could properly justify a jury coming to the conclusion that the relevant facts necessary to establish the tort had been made out. The material to which I have referred does not, in my judgment, go anywhere near displacing what is the prima facie conclusion to which any court would come, which is that the prosecutor was entitled to take the view that the Community law issue was one which was complex and certainly could not drive a reasonable prosecutor to the conclusion that the Community provisions were bound to undermine the validity of the domestic law provisions upon which he was relying. If there was any direct evidence to the effect that Mr Corbett himself had those views, then that would be one matter; but there is nothing to suggest that he did, and there is nothing in the way in which he behaved objectively in relation to the prosecution which in my judgment was sufficient to justify an inference that he might have been so affected as to justify a judge leaving that factual issue to a jury.
42. I take the view that this is a case in which the appellant has sought to construct an ingenious argument on too flimsy a factual base. The material which suggests that within the respondent there were doubts about the validity of the legislation was historical in the sense that those were views expressed some seven years before the dates in question, and against a background that the Commission had in fact not taken any steps in the intermediate period to indicate that it had any continuing doubts about the validity of the legislation. It seems to me in those circumstances that, although the judge, in relying as he did upon Mr Corbett's evidence itself, went further than he should, nonetheless the conclusion to which he came was the right conclusion: namely, that no jury, properly directed, on the material that was pleaded, could properly have found that the respondent had no honest belief at the time in the validity of the prosecution and was impelled by an improper motive.
43. Mr Newman has sought valiantly to assert that, even if one approached the events in 1992 on the basis that Mr Corbett himself did not have any doubts which could justify the conclusion that he had no honest belief in the validity of the prosecution, his state of mind could be aggregated (if that is the right description of it) to the state of mind of the officials in 1985, so that their doubts should be ascribed to the respondent as an entity when the decision was taken to prosecute in 1992. Therefore, aggregating their doubts to Mr Corbett's state of mind, it is submitted that there is material which could justify the conclusion that the respondent as an entity did not therefore have an honest belief in the validity of the prosecution and was prosecuting for an improper motive.
44. I have very real doubt as to whether or not such aggregation can as a matter of law be relied upon in order to find malice, which is a necessary ingredient of this tort. No authority has been cited for the proposition that it can be, and it seems to me to be unlikely as a matter of principle that it could be. But that in any event does not seem to me to be an issue which needs to be determined. I do not take the doubts expressed by the officials in 1985 as in themselves sufficient to justify the conclusion that a prosecution, even against those doubts, would have been sufficient to justify a jury in concluding that the prosecution would have been one commenced without reasonable and proper cause and for an improper motive. It follows that it is not necessary for the purpose of today to decide that issue, and it is certainly not necessary for the purpose of this case.
45. Accordingly, although the effect of the decision is, as pointed out by Mr Newman, to deprive the appellant of the entitlement to have factual issues determined by a jury, it seems to me that the court is entitled to conclude that a case should not proceed if it is satisfied (as I am in this case) that no jury, properly directed, could come to findings in the appellant's favour. In those circumstances it seems to me that there is no principle which precludes this court from entering judgment under Part 24 where, as Lord Woof said in Swain v Hillman, essentially the case has no prospect of success.
46. I would therefore dismiss this appeal.
47. LORD JUSTICE RIX:I am grateful to my Lord, Lord Justice Latham, for setting out the statutory and factual background to this appeal. For reasons which I will briefly attempt to explain, I have experienced considerable doubts about the correctness of the judgment of Mr Justice Eady and about this court's response to the appeal. In the light, however, of what I understand will be Lord Justice Longmore's agreement that this appeal should be dismissed, I do not press my concerns to a dissent, but I think I should say something about them.
48. I begin by highlighting four documents in particular. The first is the internal memoranda of Mr C J Ryder dated 16th July 1984, under the heading "Exports of Live Calves: RSPCA Allegations/Reports from French Authorities". In a paragraph towards the end of that memorandum, under the subheading "Points for Discussion", Mr Ryder said as follows:

"Frankly, we have already played into the hands of the RSPCA, who seem to have no evidence of cruelty or unnecessary suffering, by introducing a Directive and national measures and administrative provisions which contain detailed controls which are impractical to operate and unnecessary to protect animal welfare. We would surely be playing further into their hands if we let them pressurise us into investigations which will only expose the impracticality of the various controls."

49. Then he concluded the memorandum with these remarks:

"I hope that we can have an internal discussion on these matters soon and that this can result in a policy which we can operate effectively, and defend honestly, without having to pretend that we can control matters outside our jurisdiction."

50. Then the same Mr Ryder, in a letter of 5th March 1985, referred to the practical difficulties of implementing the 18-hour rule. He commented:

"In other words we are in a quite untenable position because - without veterinary justification or legal authority - we are purporting to `require' those taking animals more than 18 hours to feed and water en route - and in premises `agreed as suitable' to boot!"

51. Next there comes a letter of 22nd March 1985 from a Mr Burne at the Ministry to the Cabinet Office in London. He wrote, in part: "At the turn of the year, after some six months of silence from all Commission sources, we sought our Minister's views on the tactics and future handling of this dispute. We are in no doubt that should the Commission press this case in the European Court we would lose. As you know, specific licensing - the method we chose in our 1981 Order to implement our obligations under the two Community Directives governing the welfare of animals on transit - is anathema to the Commission. There are other requirements in the body of the Order itself and in the licences granted under it which could also be swept away."
52. Finally, in a further memorandum dated 10th October 1985, headed "Exports of Live Animals: RSPCA Complaint", Mr Ryder said this: "However I thought you would be interested at this stage to see how clearly this trail highlights the very difficulties over our 18-hour rule which we have exposed in our draft submission. Nothing about the length of the journey or the lack of feeding arrangements involves a prima facie contravention of the Directives. But our 18-hour rule (and its implication that we are responsible for ensuring that animals are fed in accordance with it) enables the RSPCA to make mischief in the following ways ..." and he gave examples of such mischief. He then concluded his memorandum with this paragraph:

"It is painfully clear to me that as long as we have our 18-hour rule we shall only be able to answer questions such as Mr Mews' evasively and unconvincingly. I hope that there is no suggestion that we should stand firm on this rule. But if there is, I would be grateful if somebody could let me know how I am expected to remonstrate with exporters when feeding declarations are not fulfilled, defend the rule's operation to the RSPCA, explain it to M Wintergerst and ensure at the same time that we are not taken to the European Court!"

53. My Lord, Lord Justice Latham, has illustrated many other documents in the file before us which show that in external correspondence with the Commission (in letters, for instance, from the Office of the United Kingdom Permanent Representative to the European Communities) the United Kingdom made a defence both of complaints by the Commission that the United Kingdom Order had gone too far and also of complaints by the RSPCA that it had not gone far enough. Nevertheless, there is an intriguing, to my mind, difference between the terms of the external correspondence (which Mr Newman called the "public face") and the internal documentation of the Ministry, from which I have quoted (which Mr Newman called the "private face"). Those internal memoranda, from which I have quoted, were, it is accepted, written by senior officials of the Ministry.
54. The circumstances of the prosecution, its success in the Magistrates' Court and its failure in the Crown Court are, in certain serious respects, obscure. To some extent such obscurities may be explained by the terms of the advice given by counsel - two different counsel at the two different stages of that prosecution - which at the moment it is not possible to see behind. However, subject to those matters concerned with the advice of counsel, it might be said that the bare facts of the case are that the prosecution was mounted by Mr Corbett at a time when he, as he deposes, knew nothing about the internal dismay expressed by such writers as Mr Ryder and Mr Burne within the Ministry as to the validity of the United Kingdom legislation. But there came a time when he did discover something of these concerns, when documents came forward and a decision had to be made as to whether those documents should be disclosed to Mr Mills and his legal representatives. At that time a decision was made to make an application for public interest immunity. That application presupposed a concern that those documents were relevant and material for disclosure, subject to immunity. Nevertheless they were not disclosed, even though no immunity order was made in favour of the prosecution.
55. There followed three and a half days of argument before the Magistrates' Court as to the validity of the United Kingdom legislation - the very point that was essentially in issue on the prosecution. That hearing ended in the conviction of Mr Mills on 42 counts and he was fined a total of £4,200. He appealed to the Crown Court. On the eve or thereabouts, or at any rate certainly in the run-up to the Crown Court hearing, the material which had not so far been disclosed was disclosed to Mr Mills and his legal representatives in a number of tranches. By then there had been a change of counsel. They were disclosed on the basis that they were relevant and material and ought to be disclosed, and at that stage no immunity was requested for such disclosure.
56. Following that disclosure, and following also the inability or refusal of Madame Plisson to come to court and the refusal of the Crown Court to permit her records to be put in evidence, the Ministry indicated that if an application of no case to answer was made the Ministry would not oppose it. It was in those circumstances that Mr Mills' appeal succeeded. All this is somewhat obscure because, if the Ministry considered that its prosecution could not survive without the evidence of Madame Plisson or the evidence of her records, it is not easy to see how its prosecution could have succeeded before the Magistrates. That, however, is all that we know from Mr Corbett at the moment as to the circumstances in which the appeal of Mr Mills succeeded. It seems to me that those essential facts about the prosecution give one pause for concern in the light of the passages which I have read from the internal records of the Ministry.
57. There is then the fact that, in all the years from the enactment of the 1981 Order until this prosecution was brought, there was, as has been disclosed to the court this afternoon, no other prosecution under the relevant legislation. The charges brought against Mr Mills were preferred on 26th February 1992. That was, as Mr Parker QC, who has appeared on behalf of the Ministry, accepted, a mere matter of weeks before the promulgation of the 1992 Order on 1st April 1992 which, when it came into force on 1st January 1993, swept away the 1981 Order under which Mr Mills was charged and replaced it with the new terms of the 1992 Order. So there is that factor as well to bear in mind.
58. While I am unsure as to the extent to which Mr Mills would be entitled on his claim in malicious prosecution to obtain disclosure of documents from the Ministry which would otherwise be privileged, I am struck by the thought that, certainly to the extent to which the Ministry (see, for instance, Mr Corbett's affidavit) specifically puts legal advice in issue, I suspect that disclosure would be necessary and privilege has been waived. I am uncertain (because the matter has not really been exposed in argument today) of the full extent to which a claim in malicious prosecution undermines the usual and, of course, very important legal professional privilege which litigants are entitled to enforce, and therefore I make this point with diffidence - with all the more diffidence because, of course, if there is in truth no case fit to go any further than the claimant's pleading, one does not get to disclosure in the first place. But I have been concerned as to whether this application achieves the result that it overtakes the disclosure of documents in line with Mr Corbett's evidence about his reliance on counsel's advice and so forth. In that connection one wonders, for instance, quite apart from advice from counsel, what advice Mr Corbett sought within the Ministry itself, when he learnt for the first time of the Ministry's disquiet about the 1981 Order, as to the circumstances of his prosecution.
59. In this connection, there was a certain amount of discussion arising out of submissions before the court as to whether there might be a relevant absence of honest belief, for the purposes of a claim in malicious prosecution, where a senior officer of a Ministry knows of dismay felt within the Ministry about the validity of the legislation under which a prosecution is brought but does not inform another official within the Ministry who it might be thought should be brought into the loop of such dismay, such as the head of its prosecution department - to wit, Mr Corbett, in this case. Mr Newman went so far as to be inclined to accept that, if senior members of the Ministry did know enough (he was not, of course, making any concession on the facts and was speaking purely hypothetically) about the legal status of legislation which formed the background to a prosecution brought within the Ministry, that might well be relevant to the absence of honest belief.
60. I am concerned that, by dismissing Mr Mills' case for malicious prosecution summarily, the interesting, perhaps difficult and perhaps entirely speculative aspects of these considerations are lost. Ultimately, the longer Mr Newman's submissions went on, the more uncomfortable I felt that this court was being invited to conduct a mini-trial on an issue, when in truth there was an issue for a jury to decide after they had heard Mr Corbett's explanation and in the light of full disclosure, such as it might entail, about the course of this prosecution in the overall light of the 1981 provisions.
61. That said, as I have already indicated, this appeal is to be dismissed and I do not ultimately dissent from that conclusion. I note that Mr Mills has two other causes of action which will, albeit on their different legal bases, enable him to bring his complaints to court.
62. LORD JUSTICE LONGMORE: Both Mr Newman QC, for Mr Mills, and Mr Parker QC, for the Ministry of Agriculture, Fisheries and Food, took this court carefully through the correspondence between Her Majesty's Government and the European Commission, as well as through the Ministry's internal memoranda in relation to the legality of the Export of Animals (Protection) Order 1981, pursuant to which the prosecution in this case was brought. Those documents reveal, to my mind, no more than serious arguments, some seven years before the prosecutions in this case took place, suggesting both the legality and the illegality of the Order.
63. I only add to the quotations that have already been made by my Lords a reference to the letter of 7th November 1985 from the Permanent Secretary at the Ministry, Sir Michael Franklin, to Monsieur Legras, the relevant Director General at the Commission of the European Communities, acknowledging, of course, that this is what Mr Newman would call the "public face". He said this, among other things:

"I know you will be aware of the sensitive and complex political background to this subject, which has put the UK in the extraordinary position of being accused at one and the same time of being both too strict and too lax in its operation of the Directives. On the one hand there is the Commission's challenge, communicated in Commissioner Dalsager's letter of 15 May 1984, to the legality of the licensing measures we have adopted to apply the Directives in relation to animals exported from Great Britain. The Commission has argued that our measures go further than the Directives authorise. We do not accept that, for the reasons outlined in our response of 10 July 1984. But in addition Michael Jopling, in personal letters to Mr Dalsager (21 June 1984) and Mr Andriessen (3 May 1985) has clearly warned the Commission that there would be considerable damage to the image of the Community in Great Britain if we were forced by the Commission to weaken measures which we have adopted to protect animal welfare in implementation of Community Directives. On the other hand, the strength of public opinion in this area (and the consequent risk of political embarrassment) is very neatly illustrated by the Royal Society for the Prevention of Cruelty to Animals (RSPCA's) voluminous complaint to the Commission. They are saying in effect that Great Britain (and France) do not go far enough in implementing and enforcing the Directives."

64. This paragraph of this letter encapsulates the conflicting arguments that existed at the time about the Order. In those circumstances I do not see how, even if it were clear (which it is not) that the prosecutor himself, Mr Corbett, knew of the doubts about legality expressed by officials in the Ministry, that could constitute evidence of malice on the part of the prosecutor in this case.
65. The only other matter in respect of which the claimant can, in my judgment, reasonably rely as evidence of malice is that the documents examined in court today were the subject of a PII application when the case was before the Magistrates' Court (which the Magistrate did not in fact, for reasons which must have seemed good to him, consider) and they were disclosed very late when the matter came to the Crown Court.
66. Expressions of views on matters of law, even by the parties most interested, are, however, not strictly relevant for a court, which has to decide for itself a question of legality of subordinate legislation, albeit with the assistance of the submissions of counsel. Views of those in Ministry cannot assist on that question. It has to be remembered that this Order was the law of England and Wales until such time as it was declared to be void by a competent authority. That never happened in relation to this Order, and it is too extreme to say that on all the material in this case there is any evidence in relation to which a jury, properly directed, could conclude that the prosecution, on the information available to the prosecutor, was malicious.
67. I therefore agree, for the reasons given by my Lord, Lord Justice Latham, that this appeal must be dismissed.
Order: appeal dismissed; question of whether or not appellant should pay any costs and amount of those costs to be remitted to a costs judge to be determined; detailed assessment of the appellant's public funded costs; permission to appeal to the House of Lords refused.