England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE GARLAND)

		Royal Courts of Justice Strand London WC2 Thursday, 11th October 2001

Thursday, 11th October 2001

1. LORD JUSTICE WARD: Mr. Matin seeks permission to appeal against a decision of Garland J. of 18th June this year that his claim for malicious prosecution should be struck out under the Civil Procedure Rules as having no real prospect of success. In so concluding the judge was upholding, at least in this part, the earlier decision of Master Trench of 12th February this year. This is therefore a second appeal and to go any further Mr. Matin has to satisfy us that his appeal would raise an important point of principle or practice or that there is other compelling reason for this court to hear this second appeal.
2. Stating the facts as shortly as I can, the position is that Mr. Matin was the secretary of the North London Sylhety Community and Welfare Association. He fell out with the other officers of the association: Mr. Fakarul Islam, the Chairman; his son Tajul Islam, who happened to be a Special Constable; Helal Uddin, a Director; and Abdul Mannan, the Vice-Chairman. The applicant was suspended from his post on 20th November 1998. He asserts that at that time he was owed two sums of money and he points to a resolution of the association acknowledging that indebtedness.
3. On 23rd November Mr. Matin presented a cheque drawn on the association's account but made payable to himself for the total sum said to be owing to him of some £1426.04 and sought to cash it at the bank. The bank would not pay him immediately unless it was made payable to cash and the alteration duly signed. The cheque purported to have been signed by Mr. Fakarul Islam, the Chairman. Mr. Matin left the bank and returned shortly afterwards with the alterations made, which he said had been signed by Mr. Fakarul Islam whom he had happened to meet in the street. The bank manager, knowing something of the background, contacted Mr. Islam who denied that story. The applicant left the bank.
4. Tajul Islam then reported the matter to the police. On 30th November Mr. Islam Senior wrote a letter in which he seems to have asserted that the applicant was making a fraudulent claim for reimbursement. In the proceedings which followed, the association seems to have denied that he had any authority to make that kind of assertion. The proceedings to which I have just referred are the proceedings for libel commenced by Mr. Matin, alleging that that letter was defamatory. He succeeded in obtaining judgment in default of defence in the libel action, but an application was made to have that set aside. A hearing was listed before Master Eyre and the parties attended in the Bear Garden before him at 10.30 a.m. After the parties assembled in his rooms the Master adjourned the matter until 2 o'clock.
5. Shortly after leaving the Master's room Mr. Matin was arrested by a police officer in the Bear Garden in the full glare of everybody who was there, and particularly the defendants to the libel action, the members of the association with whom Mr. Matin was locked in deadly battle. Mr. Matin says that the police officers refused all the requests he made to be released in order to attend before the Master, as everybody knew he was due to do at two o'clock. Far from releasing him, on bail or otherwise, he complains that the police took him back to his home where, in the Particulars of Claim which are before us, he pleads (and this part of the pleading has never been struck out) that the police trespassed on his privacy and property by wrongful, vindictive search.
6. In those Particulars of Claim the applicant pleads that the police officer "conspired unlawfully with the Defendants in [the libel case] and allowed the Defendants to succeed in their ... application to set aside the two Judgments ... with costs [due to his non-attendance]". He also pleads that by their taking him to the police station and detaining him he has been wrongfully deprived of his liberty by the police and that he has been falsely imprisoned by them.
7. Mr. Matin was charged on 16th December, originally, I think, with attempting to obtain property by deception (namely attempting to obtain the £1400-odd) with the intention of permanently depriving the association of it by the deception of falsely representing that Mr. Islam had co-signed the cheque presented for cash. It may be later but it now seems clear that he was also charged with making a false instrument (namely the cheque) with the intention that someone would be induced to accept it as genuine and so acting to his prejudice.
8. The Crown Prosecution Service decided at the end of February 2000 not to proceed with that case, which was due to be heard a few days later on 3rd March. On 27th October 1999 D.C. Gravestock, who was then in charge of the case, had apparently discussed the matter with a barrister employed by the CPS who had advised him that there was sufficient evidence to refer a charge of attempting to obtain property by deception and forgery if it was felt appropriate. By then a handwriting expert had concluded there was strong evidence to support the proposition that the two questioned signatures in the name of Mr. Fakarul Islam were not genuine signatures, although the evidence as to whether or not they had been produced by the applicant was inconclusive. That gives rise to the claim made in the Particulars of Claim for damages for malicious prosecution.
9. On the defendant's application to strike out, Master Trench effectively struck out everything expect the claim for trespass arising from the search of the defendant's premises. On appeal to Garland J., the judge restored the claim for false arrest, holding that it was arguable that an arrest with the ulterior motive of disadvantaging the person arrested from conducting litigation was, in the particular (and one might almost say bizarre) circumstances in which it occurred in the Bear Garden, an arrest in bad faith. Moreover it was arguable, held the judge, that the arrest was unlawful "because it was underlain, to D.C. Gravestock's knowledge, by a dishonest concoction on the part of a defendant faction seeking to denigrate and harm the Claimant". The judge also restored the conspiracy claim on the basis that "if the 'conspiracy' evidence is relevant to discretion on arrest (as I hold that it is), then I see no reason why it should not be argued as evidence of conspiracy to do an unlawful act".
10. The judge refused, however, to restore the malicious prosecution claim, and that is the subject of the application for permission to appeal. He held that it was a matter of law to be decided by the judge whether the prosecutor had reasonable and probable cause to charge the claimant at the time when he was charged. He held that the handwriting expert's evidence, in the narrative context of how the cheque came to be drawn and the attempt to negotiate it, supplied that reasonable and probable cause. He did not, as I read it, deal with a possible defence that may leap from the papers to the attempt to obtain property by deception that the defendant would have had a reasonable claim of right, given the acknowledgement in some minutes of the association that money was owing to him. Be that as it may, the judge held that, as a matter of law, there was no real prospect of the allegation of malicious prosecution succeeding.
11. As I said at the beginning of this judgment, the obstacle that the applicant has first to overcome is to satisfy us that some important point of principle or practice is raised in this appeal or that there is some other compelling reason to grant permission. I have listened sympathetically to Mr. Matin, and I am afraid he did not seem to me to be able to advance any important point of practice or principle under the first limb of Order 52.13(2).
12. For my part, I cannot see such an important point arising either. But he urges upon us that there are compelling reasons why this matter should be allowed to go forward. The compelling reason, in a nutshell, is that there is a matter of public interest in this case by virtue of the fact (and only by virtue of the fact) that the Commissioner for the Metropolitan Police is the defendant. I do not regard that by itself as a compelling reason.
13. There is, however, more force in the submission that the trial, as it will proceed on the matters still remaining to be decided, will be a jury trial in which the question of the malice or absence of malice on the part of arresting officer (and, it may then be, the subsequent investigating officer) was a material part of the case upon which the jury would be required to make its finding. The point of law which would be argued if the appeal is to be permitted to go forward would be, in a nutshell, that if the prosecutor lacked an honest belief in the guilt of the accused then that would justify the matter going to the jury because it would undermine the reasonableness of the belief in the probable outcome of the prosecution.
14. It seems to me, and not without a high degree of hesitation, that there is compelling reason to allow this appeal to be advanced, simply because if the point of law is made good it will not add substantially to the eventual jury trial, although it may affect (and to what extent I venture no opinion) the eventual outcome of it and the amount of any damages which Mr. Matin may recover. But it seems to me that the two cases are sufficiently intertwined and there is insufficient saving of cost at the eventual trial to rule out the applicant's entitlement to raise the pure point of law, which, trying to define it again, would be this: If there is evidence of malice, is that as a matter of law a reason for the judge leaving it to the jury to decide the question of reasonable and probable cause? That, in my judgment, is arguable and very hesitantly I agree that there is compelling reason why that should be argued.
15. Accordingly I will grant leave to appeal on that very limited basis. There is one point of law only to be argued and no more.
16. Mr. Matin and I are old friends. His array of McKenzie friends are here in all their glory and force yet again, and I embrace them with open arms. But I repeat again the advice I gave the McKenzie friend on a previous occasion, that his best service to Mr. Matin will be to produce that muzzle or that large paper clip and have it ready to restrain the garrulous Mr. Matin from saying more than is necessary for the proper advancement of his submissions to the court. With judges less patient than I, anything more will only infuriate the court and do nothing to assist the worthiness of his cause, if worthy it be. I warn Mr. Matin that he has a short point of law to argue and he should keep his submissions very short indeed.
17. I say this in conclusion. Mr. Matin sees this as a great public trial against the Metropolitan Police. I do not know what he wants to come from it. The Metropolitan Police have an awkwardness to deal with in the manner of this arrest. It seems to me that this is exactly the kind of case which cries out for the good sense of being settled, and settled sooner rather than later. Whether Mr. Matin has the good sense to settle it, I do not know. His McKenzie friends have my permission to bend him over and kick him hard into adopting that course of action.
18. Whether the Commissioner of the Metropolitan Police is willing to engage in any attempt to compromise the claim I do not know. But he would be wise, perhaps, to at least make the attempt. Therefore I will recommend to the Court of Appeal Office that that process be undertaken, and I urge Mr. Matin, if he has any sense, to listen to me. If his McKenzie friends have any influence, I urge them to use it. He will gain nothing by pursuing this matter before the jury, and if he got even a modest apology from the Commissioner of Police, that should satisfy his honour. If he got a few shillings in addition (and very few in addition) that at least will do justice to what took place.
19. Mark my words, Mr. Matin, and take heed of them. I would very much hope that this matter does not come back to the Court of Appeal. You have seven days in which to file your notice of appeal. If you do not comply you will probably be struck out.
ORDER: Appeal allowed on limited basis noted; judgment for applicant at public expense; copy of judgment to be sent to defendant; costs in the appeal. (ORDER NOT PART OF APPROVED JUDGMENT)