England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SUPPERSTONE J
[2013] EWHC 794 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th June 2014

LADY JUSTICE SHARP:

Introduction

1. This is an appeal against the order of Supperstone J of 9 April 2013, granting summary judgment to the respondent pursuant to CPR 24(2)(a) and (b) on the ground that the appellant had no real prospect of succeeding in his claim at trial and there was no other compelling reason why the case should be tried.
2. The appellant is now 76 years old and was at the material time a serving life sentence prisoner. The respondent is responsible for the provision of probation services within the Lincolnshire area. The claim is for misfeasance in public office; and it is brought against the respondent on the ground that it is vicariously liable for the actions of one of its employees, Michael Gilbert. In January 2008 Mr Gilbert took up the position of Lifer Manager at HMP North Sea Camp, where the appellant was a serving category D prisoner.
3. The claim centres on the circumstances in which the appellant was removed from open conditions at HMP North Sea Camp on 8 May 2008 and returned to closed conditions.
4. In summary, the Particulars of Claim allege that Mr Gilbert created a false and deliberately distorted case in an "Open Conditions Failure Report" called an 'LISP4' (the LISP4 Report) recommending the appellant's removal from open conditions to closed conditions, without regard to the appellant's actual risk to the public; and in instigating the appellant's removal on the basis of the LISP4 Report, knowingly or recklessly acted beyond his powers in circumstances in which he knew that such an act would probably cause injury to the appellant. The injury alleged is the restriction of the appellant's liberty consequent on his removal to closed conditions.
5. It is also pleaded that Mr Gilbert's conduct was motivated by the improper purpose of diverting criticism on the mishandling of the appellant's case and/or by Mr Gilbert's view that the Parole Board was about to order the appellant's release or confirm that he be kept in open conditions.
6. Although motive is pleaded, the appellant maintains his case, as advanced in the Particulars of Claim is one of "untargeted malice", that is the second form of liability for misfeasance in public office referred to by Lord Millet in Three Rivers District Council v Governor and Company Bank of England (No 3) [2003] 2 AC 1 where at page 191 E-F, in a passage cited by both sides to this appeal, he said this:

"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."

7. For the reasons that follow I have concluded that the appellant's appeal should be allowed. In summary, in my judgment the judge was wrong to conclude that the relevant threshold for summary judgment had been surmounted in this case.

The factual background

8. On 22 August 1965 the appellant murdered a 16 year-old girl. The murder contained a significant sexual element to it. The victim was taken to a park for the purpose of having sexual intercourse and strangled there. On 16 November 1965 he was sentenced to life imprisonment. On 15 April 1976 he was released on life licence and in 1977 he met and began to live with a woman who became his second wife. Two years after his release he was convicted of a burglary, and received a 15-month suspended sentence of imprisonment. On 7 March 1979 his wife was granted an ex parte injunction against him under the Domestic Violence and Matrimonial Proceedings Act 1976 based on allegations of rape, assault and serious threats. On the 12 March 1979 the appellant violently raped a 19 year-old girl. She was a student unknown to the appellant and was raped at a guest home he owned, to where he had invited her for what purported to be a job interview. On 3^rd April 1979 his life licence was revoked and he was remanded in custody. Following his trial for rape, in July 1979 the appellant was sentenced to a total of 10 years and 3 months' imprisonment, including 9 years' imprisonment for the rape. The remainder of his sentence was for possessing a firearm whilst a disqualified person, assault occasioning actual bodily harm, theft, and in addition, his suspended sentence for burglary was activated. On 7 April 1993, the appellant did not return from compassionate leave, granted so he could visit his father in a Hospice. He was recaptured two weeks later.
9. The appellant has always denied the rape, contending the sexual intercourse that took place was consensual. His denial of the rape meant for many years, between 1979 and 1997 he could not undertake any "targeted offender behaviour" work. Such work is aimed at lowering the level of risk an offender poses to members of the public; it is relevant to whether the prisoner can progress from closed conditions to open conditions, and ultimately be released on licence. However in a report in 2004, a forensic psychologist at HMP Albany, Ms Capelin, addressed both the murder and rape offences, and supported the appellant's transfer to open conditions. She said that the appellant had shown a willingness to challenge and modify behaviours associated with areas of risk. The appellant's tenth statutory parole review considered that recommendation and other oral evidence and on 11 March 2005 recommended he be transferred to open conditions. On 24 April 2006, the appellant was duly transferred to open conditions at HMP North Sea Camp. By then, he had completed a number of offending behaviour courses including a Sex Offender Treatment Programme (SOTP) and a Better Lives Booster Programme (BLP).
10. The assessment of the needs of offenders and the measurement of the level of risk they pose to members of the public is made by the Probation Service through the Offender Assessment System (OASys for short). At the time of the appellant's transfer to HMP North Sea Camp his risk level i.e. the level of risk he posed to members of the public, was assessed as medium, but in an OASys assessment dated 22 June 2006, by Ms Rawlings, a clinical psychologist, his risk level was increased from medium to high for both the public at large and known adult categories. Ms Rawlings said the psychopathy assessment or risk matrix assessment individually would give cause for the expressed concern. A further OASys assessment by Mr Glenn Spencer dated 13 October 2006 also assessed the appellant's risk as high. As a result of his raised risk level, the appellant was no longer eligible for unescorted leave, though he was permitted to take escorted town visits with his personal officer, Officer Baker.
11. Release on Temporary Leave or ROTL, on days out and home leave enables an assessment to be made about whether a prisoner would be a danger to the public were he to be released. A progress report (called an LSP3E report) by Mr Baker dated 27 January 2007 said due to the assessment of his risk level as high the appellant could not prove himself under licence conditions for days out and home leave. This was not the appellant's fault but it meant that he was unable to progress in open conditions, and therefore release could not be recommended. Multi-Agency Public Protection Arrangement (MAPPA) meetings take place between those agencies responsible for the management of violent and other offenders who pose a serious risk of harm to members of the public. Mr Baker's view that the appellant was unable to progress was echoed in a number of MAPPA meetings about the appellant that took place before Mr Gilbert was in post. In a MAPPA meeting of 26 July 2007 concerns were raised as to his suitability for open conditions. In a MAPPA meeting of 4 October 2007 it was noted that the appellant's risk was assessed as high: and that a move to closed conditions had clearly been considered but seemed unlikely due to good behaviour.
12. On 1 January 2008 Mr Gilbert took up the position of Lifer Manager at HMP North Sea Camp. He had a brief introductory meeting with the appellant on 3 January 2008. On 8 February 2008 Mr Gilbert emailed Sarah Skett, the Area Psychologist for the East Midlands region about the appellant saying: we must not sit on him any longer, but don't feel we can regress him. He asked for advice on what would be sufficient to trigger a regressive move. On 28 February 2008 the appellant and Mr Gilbert attended a sentencing planning meeting. On 29 February 2009 Mr Gilbert began to prepare the LISP4 Report. Mr Simon Hudson, a security analyst, provided a report (or security gist as it was later referred to) to Mr Gilbert the same day, which examined reports on the appellant during his time in custody, his adjudication record, and various incidents noted during his time at HMP North Sea Camp. Mr Hudson referred to two incidents which were later to feature in the LISP4 Report. One related to the appellant's behaviour towards Ms Rawlings when she had a coughing fit (the appellant is said to have become controlling); and the second, related to his visits during day release into the town to a unisex hair salon.
13. On 3 March 2008 Mr Gilbert sent a draft of the LISP4 Report to Ms Skett asking for her views. On 5 March 2008 Mr Gilbert drafted an LISP3E report (in place of Mr Baker who was on long term sick leave) which the appellant contends contained similar distortions to those that later appeared in the final version of the LISP4 Report. On 12 March 2008 Ms Skett responded to Mr Gilbert's email: Initial thoughts around exploring the current offence in more depth and also current potential risk factors (simply to give more ammunition for putting him back to closed conditions) and suggested he look for offence paralleling behaviours in current [behaviour]. On 13 March 2008 Mr Gilbert replied to Ms Skett saying that if he could not find other evidence it sounds as though this will not be enough to [re categorise] him. On 17 March 2008 Sally Plank, an independent probation officer employed by the Medway Offender Manager Unit in the Kent Probation Area, became the appellant's Home Offender Manager. On 27 March 2008 she completed an OASys assessment on the appellant. This assessed his level of risk as high. On the same day, a MAPPA meeting took place, attended by Mr Gilbert but not Ms Plank where the appellant's risk management level was upgraded from level 2 to level 3.
14. On 2 April 2008, Ms Plank completed a further OASys assessment on the appellant. This now assessed his level of risk as very high. On 11 April 2008 the Secretary of State issued a Pro-forma 'View'. It referred to the appellant's risk of harm as high, and said that a return to closed conditions for the appellant was now supported.
15. On 14 April 2008 the appellant's eleventh statutory parole review took place. It could not proceed to a full hearing because the Secretary of State and HMP North Sea Camp had not complied with disclosure directions made on two earlier occasions: first, on 27 September 2007 when directions were also made for further reports to be prepared on the appellant, including a release and risk management plan following a series of ROTLs; and secondly on 12 March 2008. A specific assurance was given however by the Lifer Governor of HMP North Sea Camp in the presence of Mr Gilbert that the appellant would remain at HMP North Sea Camp pending the hearing of an adjourned parole review, that the necessary documents would be disclosed as a priority and that the appellant would also be allowed to take a number of ROTLs. In the light of those assurances, the parole review was adjourned to the 30 July 2008. Mr Gilbert did not tell the Parole Board however about Ms Plank's revision of the appellant's level of risk (to very high) or of the Secretary of State's revised View that the appellant should be returned to closed conditions.
16. On 1 May 2008 Mr Gilbert completed the LISP4 Report. It referred to a meeting of the Inter-department Risk Management Panel (RAMP), chaired by Mr Gilbert but not attended by Ms Plank, which had taken place that day, where it was said that the outside probation service (i.e. Ms Plank) had put the appellant's level of risk as very high. The meeting endorsed the appellant's move back to closed conditions on the basis that his continued stay in open conditions was incompatible with his risk assessment.
17. On 8 May 2008, notwithstanding the assurance given to the Parole Board, the appellant was moved to closed conditions without formal notification in advance or the opportunity to make representations. He was moved initially to HMP Lincoln, a category B prison, and subsequently transferred to HMP Whatton, a category C prison.
18. On 3 June 2008 judicial review proceedings were begun on the appellant's behalf against the Secretary of State for Justice seeking a declaration that his removal to closed conditions was unlawful. These proceedings were dealt with by Collins J on 2 July 2008 (see [2008] EWHC 1845 (Admin)). Proceedings were adjourned generally upon the Secretary of State agreeing that two questions would be referred to the Parole Board for advice: whether the appellant should have been relocated to closed conditions on 8 May 2008 and whether he should be recommended for immediate transfer back to open conditions.
19. The adjourned Parole Board hearing (the full hearing of the appellant's eleventh statutory review) took place over the course of 4 days between November 2008 and March 2009. It considered over a 1000 pages of documents and heard extensive oral evidence, including from Mr Gilbert, Ms Plank and expert evidence from 4 psychologists instructed variously on behalf of the appellant and the Secretary of State for Justice. The Parole Board produced a detailed decision dated 27 July 2009 and a supplementary decision dated 3 September 2009. Both were very critical of Mr Gilbert. The 27 July decision said the panel concluded on the basis amongst other things of what they described as his partial oral evidence and the many erroneous and unfairly unfavourable references to the appellant in the LISP4, that Mr Gilbert had not carried out an objectively reliable risk assessment of the appellant but was concerned to make a case for his return to closed conditions irrespective of his risk levels, having first decided that this move was necessary so as to extricate HMP North Sea Camp from its difficulties caused by the mismanagement of the appellant's sentence whilst he had been in open conditions.
20. The Parole Board described the decision to return the appellant to closed conditions as flawed, unreasonable, ill-motivated and invalid in a public law sense. One of its other conclusions was that Mr Gilbert decided not to tell the Parole Board hearing on 14 April 2008 about the Secretary of State's View that the appellant should be returned to closed conditions or Ms Plank's revised risk assessment because he did not want to highlight the embarrassing fact that the prison wished to ship the appellant out of HMP North Sea Camp due to its poor management of his sentence and proposed to do so once the hearing had taken place. The Parole Board recommended that the appellant should re-do a BLB course in open conditions if possible, but failing that in closed conditions, followed by an immediate move to an open establishment where post-programme assessments could be completed. Such assessments or SARN reports (short for Structured Assessment of Risk and Need reports) make recommendations for further work or a progressive move to open conditions and then release.
21. The Secretary of State did not accept the Parole Board's recommendation that the appellant be returned to open conditions, and the appellant was informed of this in a letter dated 13 November 2009. The letter said amongst other things, that the Secretary of State had very serious concerns about some of the Parole Board's conclusions, but the Secretary of State agreed it was appropriate that the appellant should undertake the BLB programme which is only available in closed conditions. It was said the benefits gained from that programme would need to be reviewed before the issue of potential transfer to open conditions could be considered, and this was a matter upon which the Parole Board should advise by the end of December 2010 on the basis of up to date risk assessments and reports. The appellant therefore remained in closed conditions. By letter dated 17 November 2009 the Treasury Solicitor indicated that the Parole Board's conclusions that the appellant's transfer to closed conditions was unlawful was also not accepted.
22. The appellant's judicial review proceedings were then revived. The Secretary of State's decision not to accept the Parole Board's recommendation, and to transfer the appellant from open to closed prison conditions on 8 May 2008 were both challenged. On 10 March 2010, Wilkie J ordered that the appellant be returned to open conditions, following satisfactory completion of further offender behaviour work, as envisaged by the Parole Board. He concluded the Secretary of State's letter of 13 November 2009 was not a lawful response to the Parole Board's decision, and agreed with the appellant's characterisation of the letter as Wednesbury unreasonable (see [2010] EWHC 454 (Admin)). He did not however consider it would be appropriate to issue relief in respect of the decision of 8 May 2008. He said this was a matter to be determined in any parallel civil proceedings that might be commenced.
23. The Parole Board's criticisms of Mr Gilbert had meanwhile resulted in a disciplinary investigation undertaken under the Lincolnshire Probation area disciplinary procedure. The Investigating Officer's report of December 2009 concluded there was not one witness who would support the view that he had in any way been ill-motivated, lied, created an incident or suppressed evidence.
24. The appellant successfully completed the BLB on 13 August 2010. He was assessed as requiring the moderate intensity Healthy Relationships Programme (HRP). On 17 January 2011 a SARN was completed which assessed the appellant's level of risk as suitable for open conditions in the light of the progress he had made in addressing his risk factors. The HRP was successfully completed in about November 2011 and the appellant was transferred to open conditions at HMP Lindholme on about 16 May 2012. We were told by Ms Williams QC counsel for the appellant, that he was due to be released on 21 February 2014, coincidentally the day after the hearing before us.

The judge's reasons for granting summary judgment

25. The respondent accepted it was vicariously liable for the actions of Mr Gilbert and that the appellant's loss of liberty satisfied the requirement of the tort for special damage. The issue before the judge was whether the pleaded claim to which I have referred above, had a realistic prospect of success.
26. Having set the factual background to some of which I have referred, at paragraphs 39 to 51 of his judgment the judge set out the opposing arguments on the ten distortions or exaggerations which the appellant alleged the LISP4 Report contained. He then gave the following reasons for concluding the respondent was entitled to summary judgment (referring back where appropriate to the paragraph in his judgment where the issues were discussed in more detail):

"60. Mr Gilbert took up the position of acting Life Manager at HMP North Sea Camp on 1 January 2008. He had no reason to dislike the Appellant personally. In the light of the report by HM Chief Inspector of Prisons, published a few months earlier, it was entirely appropriate for Mr Gilbert to look at the Appellant's case afresh. There was no reason for him to divert criticism from persons at the prison previously responsible for the Appellant's case, and he did not do so. He found, as he told Ms Skett, the Area Psychologist, that the Appellant had made no progress due to being a high risk of harm and there appeared to have been no strategy for doing anything with him (para 36 above). Mr Gilbert was not required to wait until the next Parole Board hearing in April 2008 before taking action. He was entitled to make a recommendation, in a LISP3E or LISP4 report, that the Appellant be returned to closed conditions, if he considered it appropriate to do so, and it was then for the Secretary of State to decide whether to accept the recommendation or not.

61. Between June 2006 and November 2007 there were a number of reports and OASys assessments completed by Ms Rawlings and other professionals that concluded the Appellant posed a high risk of harm (paras 42-46). Mr Gilbert's view that the Appellant should be returned to closed conditions was shared not only by Ms Rawlings, but also by Ms Plank, an independent probation officer. Having interviewed the Appellant on 25 March 2008, Ms Plank produced on 27 March 2008 an OASys assessment which confirmed the 2006 and 2007 assessments of risk as "high" (para 47). There is no evidence that Ms Plank was influenced by Mr Gilbert in making that assessment. It was that assessment which was before the Secretary of State when the letter of 11 April 2008 was written making it clear that the Secretary of State was of the view that the Appellant should be in closed conditions (para 55).

62. In addition to these reports and assessments, there are the opinions expressed at the MAPPA meeting on 27 March 2008 and the Risk Assessment Management Panel meeting on 1 May 2008 (para 52). It is not suggested that Mr Morgan, Mr Sutherland or Mr Webb were under the influence of Mr Gilbert.

63. The Secretary of State did not agree with the Panel's view that the Appellant's visits to female or unisex hairdressers, and explanations for such, did not give rise to any concern about the Appellant's insight and risk (para 18). Plainly it was of concern to the prison officer who accompanied the Appellant and to Mr Hudson (para 48). The coughing fit incident was also of sufficient concern to Ms Rawlings to report it, albeit not at the time (para 41). It cannot be improper for Mr Gilbert to have taken these matters into account when considering how best to progress the Appellant.

64. I have had regard to the decision of the Parole Board and their criticism of Mr Gilbert, in particular with regard to what they describe as his "ill-motivated behaviour" (para 17). However, an examination of the evidence relied upon in support of this claim for misfeasance leads me to the conclusion that there is no credible motive that would have led Mr Gilbert to have acted maliciously and there is no evidence that he was motivated by malice. The LISP4 completed by Mr Gilbert did contain inaccuracies that Ms Williams has highlighted. However in my view there is no evidence that Mr Gilbert acted dishonestly or in bad faith. The reports of Ms Rawlings, Ms Plank and other professionals provided a proper basis for Mr Gilbert to recommend to the Secretary of State that the Appellant be returned to closed conditions."

27. In summary therefore although the judge accepted the LISP4 Report contained inaccuracies, he concluded that Mr Gilbert had no motive to do down the appellant and there was no evidence that he had acted dishonestly or in bad faith. He attached particular significance to the fact that Mr Gilbert's views about the appellant's risk and progress were shared by other professionals, a matter which he considered fatally undermined the appellant's case on bad faith and on causation since the determination to regress the appellant to closed conditions was made by the Secretary of State in light of those opinions.

Discussion

28. Ms Williams makes a number of discrete criticisms of the judge's reasoning. She says that the claim was one of untargeted malice, not targeted malice. The judge's findings however did not address the essence of such a claim (wrongly taking into account absence of ulterior motive, a matter which it was not necessary for the appellant to prove as part of his claim); nor did he explain why he found the appellant had no prospect of showing the inaccuracies in the LISP4 Report were deliberate bearing in mind the findings of the Parole Board which, whilst not determinative, were that Mr Gilbert acted in bad faith in that respect. Further, the judge failed to address the appellant's case on causation or drew unwarranted conclusions about it, when concluding that he would be unable to establish that Mr Gilbert had caused the appellant's return to closed conditions.
29. Ultimately however it seems to me that her central point was that this was simply not a summary judgment case, given the complexities and contested issues of fact which it raised. As she put it during the course of argument, none of the arguments relied on by the respondent and then by the judge, delivered what might be described as a "knock out" blow to the appellant's claim. I agree with that submission.
30. CPR Part 24 enables the court to grant summary judgment against a claimant if it considers that the claimant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why the case should be disposed of at trial. It is a valuable procedure for the right case. The test to be applied in determining the threshold which must be surmounted before summary judgment is granted is however a high one, and rightly so, since otherwise the risk is that a legitimate claim will be stifled. As was recently said in Standard Bank plc v Via Mat International Ltd [2013] EWCA Civ 490, the purpose of the rule is to enable the court to dispose summarily of cases that are fanciful, hopeless or bound to fail, not to conduct an abbreviated form of trial on the basis of incomplete evidence.
31. In my opinion this is not an appropriate case for summary judgment principally because there are interconnected issues of fact that underpin the appellant's case which the court is not in a position to resolve on the evidence available at this stage, without conducting an impermissible "mini trial"; nor is it possible to be confident that a fuller investigation into the facts made through the ordinary processes of a trial will not add to or alter the evidence available and ultimately affect the outcome on liability.
32. The case for the appellant is that Mr Gilbert effectively engineered the appellant's removal from open conditions when he knew there was no proper basis for doing so. He did this by deliberately distorting or exaggerating the material available to him to cast the appellant in a bad light and to 'talk up' his risk profile in the LISP4 Report (and the LISP3 Report) that he wrote. Mr Gilbert's strongly expressed views then heavily influenced the views of other professionals such as Ms Plank, who purportedly held independent views to similar effect, and ultimately led to the decision on removal.
33. Ms Williams highlighted a number of the pleaded allegations of statements in the LISP4 Report said to be deliberate distortions or exaggerations of the material available to Mr Gilbert. First, that the appellant's transfer to open conditions [in 2005] was of an automatic kind. The appellant's case is this occurred after very careful consideration had been given to his case by the Parole Board amongst others, and the explanation given in the defence for this assertion (that the appellant had been transferred without a SARN and without an assessment of whether he had successfully completed the BLB course) could not begin to explain what was a fundamentally inaccurate description of the circumstances of appellant's move to open conditions. Secondly, that the appellant had largely avoided the Lifer Department. This is said to be both unfair and inaccurate since as Mr Gilbert well knew, the Lifer Department had wholly failed to engage with the appellant. Thirdly, what is described as a highly partial and unfair account of the coughing fit incident. In November 2006 the appellant was said to have become controlling because he kept telling Ms Rawlings to drink water and asking if she was all right when she overtaken by a coughing fit. The appellant says Mr Gilbert wrongly presented this as an established example of controlling behaviour even though the incident itself was relatively innocuous. Fourthly, an untrue statement that all too many reports relating to the appellant reflected his superficial insight into his offending and his lack of any real progress. It is said in truth, the appellant's earlier reports were all positive. They indicated a good level of insight, that his response to the treatment was good and that he had complied and engaged with the programmes concerned. Fourthly, the description of the appellant's visit to the unisex salon where his hair was cut by a woman. It is said Mr Gilbert chose to portray this incident as establishing two things: one for certain is that he has little interest in relapse prevention and the other is he continues to have an interest in teenage women even though the nature of this incident was equivocal at best, because it occurred when no male hairdresser was available to cut his hair, it caused the appellant's escort, Officer Baker, no concern and the appellant was simply asked to ensure he went to a barbers in future, which he did. Fifthly, it is alleged that Mr Gilbert purported to quote from an Extended SOTP report of 22 November 2004 but omitted crucial wording so as to reverse the sense of what was being said. The relevant quote, with the words omitted underlined is: This personality type is usually associated with poor responsitivity to treatment. This has not been the case regarding [the appellant's] participation on the Extended SOTP: nevertheless future assessments will need to focus on the retention of the treatment gains made. Other matters relied on in support of the allegation of bad faith include the email exchange with Ms Skett which it is said showed Mr Gilbert was aware of the lack of evidence supporting regression, and was looking for evidence to bolster the position.
34. It is to be noted that the judge did not find there were no inaccuracies. He said there were some, but he did not specify which they were nor did he spell out how he could conclude positively at this early stage that they were not deliberate distortions or exaggerations of the true position. This it seems to me it was important to do, bearing in mind the respondent's case is not that such inaccuracies as there were, were innocent errors or infelicities of language, but that the LISP4 Report was a credible and fair representation of the true position.
35. Some of the examples might be thought to be stronger than others, and I am far from saying that they are incapable of explanation or answer, whether individually or collectively. But I do not think it can be said with confidence at this preliminary stage of the trial process that it would not be possible for an inference to be drawn that the inaccuracies were deliberate and done with the purpose of skewing the appellant's risk profile, and presenting it in an unfavourable light. Whether the errors, if proved, were innocent or not will depend it seems to me amongst other things on their nature and extent, whether they are all "one way" as Ms Williams submits they were, on a careful examination of the material available to Mr Gilbert and what he says about it, and the overall picture once these matters have been resolved. These, and the closely connected issues relating to causation, are fact sensitive matters about which I think it would be premature to draw a conclusion at this stage.
36. Whether the views of other professionals were as significant a feature as the judge thought they were either on the issue of bad faith or causation depends to an extent at least on whether those views were truly independent or not, and as I have said, the appellant's case is that they were not. The appellant contends that for the most part, a close examination of the facts shows the other professionals who gave their views at the material time were heavily influenced by what Mr Gilbert said either in the LISP reports he authored or to similar effect orally including at the MAPPA meeting and the RAMP panel, where contrary to what the judge seems to have thought, it is alleged by the appellant that Mr Gilbert was the trigger for the recommendations that were made.
37. For example, it is alleged that Ms Plank's assessments of risk were made after only limited contact with the appellant but after she had been provided with Mr Gilbert's LISP3E report, and had discussed it with him. The appellant relies too on Ms Plank's acknowledgement to the Parole Board that she was heavily reliant on Mr Gilbert in her assessment of the risk that the appellant presented. As for MAPPA, it is alleged that an examination of the minutes of the MAPPA meeting of the 27 March 2008 shows that the decision to upgrade the appellant's risk management level from 2 to 3 (a matter which also influenced Ms Plank's assessment of the appellant's risk as very high on 2nd April 2008) was made as a result of Mr Gilbert's oral report to that meeting. Moreover, the decision of the RAMP panel on 8 May 2008 was, so it is said, based on Mr Gilbert's presentation and did no more than rubber stamp the decision that he had already taken. All of these allegations may ultimately prove to be unfounded, but I do not think the judge adequately addressed the appellant's case on these matters, or that they can be dismissed as fanciful at this stage.
38. The judge's reliance on absence of motive was also problematic in my view. The appellant's case was one of untargeted malice. It was not necessary therefore for the appellant to establish as part of his claim that Mr Gilbert acted with an ulterior and improper motive. I can understand however why the judge focused on the issue. The appellant expressly relied on bad motive as part of his pleaded case, and this may have muddied the waters as to which limb of the tort the appellant was relying on. Indeed Ms Williams accepted before us that the pleadings needed to be "tidied up" as she put it, in this respect. No doubt this ambiguity is what led the respondent to submit to the judge that as a matter of reality the case was one of targeted malice whatever Ms Williams said about the matter, and fell to be tested at the summary judgment stage accordingly. Further, motive – or the absence of it - may play a role in the ultimate determination of liability since if someone has an identifiable motive to do something, the fact finder may infer it is more likely that they have done it.
39. The appellant's case however before the judge was there was some prospect of showing that the inaccuracies in the LISP4 Report were deliberate; and that if the appellant succeeded in demonstrating that at trial, it would inevitably follow both that Mr Gilbert knew he was acting beyond his powers at the time, and that the likely consequence would be the appellant's return to closed conditions. It was that case in my view, that the judge needed to address in determining the summary judgment application, and with respect I do not think that he did so.
40. Mr Daniels for the respondent submits to us as he did to the judge that Mr Gilbert had no motive to act maliciously and did not do so. He says that because of the appellant's assessed level of risk (high or very high) he was in effect stuck in the system. It stopped him progressing to a safe release on licence, which was, after all, the main purpose of him being in an open condition prison. The benefits gained from his previous completion of the BLB programmes had been lost; and in any event no SARN had been completed before he left closed conditions to assess whether his completion of that programme had been satisfactory. The appellant could not however access the treatment programmes that it was necessary for him to take to progress and lower his risk level at HMP North Sea Camp. Because of the way the prison estate organised matters, these programmes were only available to those in closed conditions, hence, the need for regression.
41. In my view however, Mr Gilbert's belief that it was ultimately in the appellant's best interests for him to be regressed, would not justify a distortion or misrepresentation of the level of risk that the appellant truly posed (the unlawful act relied on); and ultimately as I understand it, the respondent does not contend that it would do so. Thus, the central issue of fact between the parties remains whether the reports Mr Gilbert authored were essentially credible, evidenced and fair as they were described to the judge, or a deliberate distortion or exaggeration of the true position.
42. For all these reasons, in my opinion this was not a suitable case for summary judgment, and I do not think the judge gave adequate reasons for concluding that it was.
43. I should however deal with the significance of the Parole Board's findings of bad faith to the issues raised on this appeal. Ms Williams accepts that the Parole Board's findings are not determinative. Nevertheless, though the judge quoted what the Parole Board said at some length in his judgment, she says he did not in the end attach sufficient weight to its findings of bad faith against Mr Gilbert, which were made after seeing him give evidence subject to cross-examination. She says a clear basis would need to be shown for concluding that it was fanciful that the court would reach the same conclusion as the Parole Board did – and no such basis was identified. Mr Daniels however, submits the judge was entitled to reach his own conclusion on the merits, but in any event says the Parole Board's conclusions on that issue are of little weight because they were based on different evidence to that relied on in this case.
44. I can understand the forensic reasons for Ms Williams' arguments, and looking at the matter broadly it might be thought to be surprising that the judge came to the conclusion that there was no evidence of bad faith, when the Parole Board, after its detailed consideration of the documents and having heard evidence from Mr Gilbert, came to the opposite conclusion. However when considering Ms Williams' arguments on this point, I think a distinction needs to be drawn between the Parole Board's opinions on the one hand, and the evidence it considered on the other.
45. Clearly the factual evidence that emerged as a result of the Parole Board hearings would be capable of assisting in the determination of the issues the court has to consider both at this stage and at trial. One example is Ms Plank's apparent concession before the Parole Board that she was heavily influenced in her assessment of the appellant's risk by Mr Gilbert's views. Additionally, the Parole Board hearings were somewhat exceptional in their length and thoroughness. It would be unrealistic to suppose that the nature and extent of the matters canvassed before the Parole Board, looked at as a whole, would not help the court to understand the case by giving it an insight into the (potential) complexity of the case, the sort of evidence which might become available and therefore whether the case is really is suitable for summary determination or not. To that extent I accept the characterisation of the Parole Board's decision as predictive (an adjective adopted by Ms Williams in the course of argument) of the suitability of this case for summary disposal.
46. Having said that, I think it is going too far to say the judge was obliged to give weight to the Parole Board's opinions and findings in the manner suggested by Ms Williams i.e. effectively to explain why he disagreed with them, and I think the judge was entitled to adopt the approach that he should determine the matter on the merits of the factual evidence on the issues before him.
47. There will be an issue about whether it is legitimate for the Parole Board's opinions to be deployed as evidence to prove the appellant's case during the trial itself as they are expressly relied on by the appellant in support of his pleaded claim and the respondent contends in its defence that they are irrelevant. However, we did not hear any argument on the point and the extent to which the Parole Board opinions are either relevant or admissible as an aid to determining liability must be left to the trial judge to determine.
48. In the event, however, I have differed from the judge for the reasons already given, and I would allow the appeal.

LORD JUSTICE LEWISON:

49. I agree.

LORD JUSTICE PATTEN:

50. I also agree.