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 CENTRAL LONDON
CIVIL JUSTICE CENTRE

		Royal Courts of Justice Strand London, WC2
		13th February 2006

1. LORD JUSTICE LATHAM: The appellant was for some 12 years a police informer. He first became a registered informer in 1994 and his service as an informer came to an end in January 2004. During the first period up to September 2001, he was an informer in what might be described as ordinary criminal activities, fraud in particular, and indeed some quite serious fraud. But from September 2001, he became an informer in relation to the possible terrorist activity of those in the Muslim community. That appears to be accepted by the respondent. In the course of the two and a half years from September 2001 to January 2004, the material before us suggests that he could clearly have been at significant risk of harm to himself.
2. The matter comes before this court because after he ceased to be an informer, he considered that he needed, because of the nature of his activities, substantially greater protection than he had been given. He considered that the danger that he perceived himself to be in – and not only himself, but also his family; that is his wife and child – was the result of his activities being mishandled by the respondent during the course of his period of service to him. He instructed solicitors to consider making a claim for damages for negligence, and maybe for breach of contract, in relation to his period as an informer. Their advice to him culminated in a letter of 23 March 2004 to the respondent, indicating that the appellant was seeking to make a claim in particular for what was described as significant psychiatric damage, and setting out the basis of that claim. The letter was written with the intent that the appellant should obtain disclosure, from the respondent, of material documents before the commencement of any action. In other words, it was a request for disclosure under part 31 of the CPR.
3. The letter set out in relatively short form the details of the appellant's activities as an informer, identifying his handlers and the general nature of the activities in which he was engaged on the respondent's behalf. It set out the basis of the proposed claim in the following terms:

"1. His handling was not in accordance with police guidelines.

"2. He was tasked to operate far too close to his home and everyday environment such that inevitably persons against whom he has informed remain in regular contact with him.

"3. His handling was negligent. It was not appropriate in all the circumstances to subject him to the risks inherent in acting as an informer at the levels described above.

"4. In particular, he was not made aware of those risks. He was given no or inadequate training or guidance. He was given no or inadequate counselling. He was provided with neither cover nor protection when his services were summarily dispensed with.

"5. The above complaints, and in particular the failures to safeguard him or his family, were in breach of the agreement entered into between himself and his handlers under which he had become and remained an informer.

"6. The manner in which he was 'paid off' was unlawful and was carried out in a manner which recklessly disregarded risk of injury, loss or damage to himself and/or his family."

4. The respondent ultimately replied on 25 June 2004, accepting that the appellant had been an informer, and in particular that there was the significant change in the activities in relation to which he informed in September 2001. The reply asserted that the termination of his role as an informant was as a result of information obtained by Special Branch in December 2003 that he had disclosed to his wife his role as an informant. That is in fact denied by the appellant but is clearly asserted as the basis upon which, and the reason for which, his services were dispensed with when they were. The letter went on to say that a risk assessment was carried out, following the termination of his services as an informant, which did not suggest that re-housing was required. The letter ended by indicating that the respondent would not be prepared to disclose any documents to the appellant, on the grounds that the documents were in effect protected by public interest immunity, and indicated that the respondent would rely on the decision of the Court of Appeal in Carnduff and Rock v the Chief Constable of West Midlands Police [2001] 1 WLR 1786. In that case this court had concluded that, in the circumstances of the claim that was being made, the action should be stayed because no disclosure could be made of relevant documents in such a way as to enable the action to be properly determined.
5. In the light of that letter, application was made by the appellant to the Central London County Court under part 31 for pre-action disclosure. The application was heard on 12 April 2005 before District Judge Taylor, who dismissed the application. He held that the material before him, which included statements made by a Detective Inspector, a Commander and a Director General of the National Crime Squad, indicated that there were matters of high confidentiality in the documentation which could be required for the purposes of any action. This material persuaded the district judge that public interest immunity would attach to all the relevant documentation, and he concluded that in those circumstances it was not proper to order disclosure. He considered that as he put it, the case of Carnduff probably: "militates in favour of Mr Buckett's proposition that an informer cannot litigate with the police for remuneration for information provided."
6. The appellant appeals to this court against that decision on the basis that the district judge was wrong to conclude that public interest immunity precluded any disclosure of the documents, at least to the extent that this court should be prepared to say, as in Conway v Rimmer [1968] App Cases 910, that the documents should be produced to the court, in order for the court to determine in the light of the issues whether or not it would be appropriate to order disclosure between the parties. Mr Challenger on behalf of the appellant has, however, been faced, and has sought manfully to deal, with that fact. In this court we have concluded that the letter of claim of 23 March 2004 simply does not provide an appropriate platform from which to launch an application for disclosure in circumstances such as these. It is quite apparent from the way that the allegations are set out in the passage in that letter, to which I have already referred, that the claim by this appellant can be perfectly properly pleaded without the need for disclosure. Accordingly, disclosure is not necessary for the purposes of launching the proceedings.
7. The way in which the allegations are at present formulated begs as many questions as they answer as to what is the real nature of the underlying complaints against the respondent, and the extent to which they raise real issues between the parties which may require elucidation by way of disclosure. There is no material in the letter which identifies with any clarity the nature of the damage which is said to have been sustained by the appellant, which would enable one to have any clear idea of the viability of the particular complaints that are being made as support for a claim for damages. It seems to me that in those circumstances it is wholly inappropriate for the court to be asked to make pre-action disclosure, although we understand the difficulty that Mr Challenger is in in this sense; but the appellant has only been given a limited certificate for the purposes of making this application, and has not been given a certificate enabling him to take proceedings. But that cannot distort the proper application of the court's rules to a situation such as this. And I make it plain that the issue as to disclosure in my view, simply cannot be considered properly without a properly formulated claim enabling the court to carry out the exercise which will then be necessary, of determining, firstly, whether the claim as formulated is one which makes a proper claim for damages; secondly, what the issues are; thirdly, the extent to which those issues are accepted by the respondent and the extent to which the issues can be litigated, firstly in the absence of disclosure, and secondly with disclosure and the nature of the disclosure which would then be appropriate bearing in mind the nature of the pleaded case.
8. In those circumstances, and in my judgment, this appeal must fail.
9. LORD JUSTICE WARD: I agree.
10. LORD JUSTICE HOOPER: I also agree.

Order: Application refused.