England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/03/2010

Mr Justice Tugendhat :

1. The Claimant asks for permission to appeal from the decision of Master Eyre dated 17 December 2009 by which he granted the Defendants' application for summary judgment under CPR Part 24 on the ground that the claim has no real prospect of success. The application was referred to an oral hearing by Eady J, and I heard counsel for both parties.
2. I refuse permission to appeal. An appeal would have no prospect of success for the following reasons.
3. The Claimant alleges that the First Defendant, and so his employer the Second Defendant, are liable in damages for tortious acts committed by the First Defendant in his capacity as a social worker, and arising out of his involvement in family proceedings in 2001 and 2002. On 25 October 2007 the Claimant issued his Claim Form. In that he refers to three causes of action, fraudulent misrepresentation, malicious falsehood and misfeasance in public office.
4. The following account of events is taken from the Second Draft Amended Points of Claim ("APOC") dated 31 July 2009.
5. In September 2000 the Claimant issued divorce proceedings against his wife. There were two young daughters of the marriage. The wife alleged that the Claimant had sexually abused a daughter. The Claimant alleged that the abuse was by a son of the wife by a former marriage ("the step son"). Each of the Claimant and the wife also alleged that the other was coaching their children. In June 2001 the Court appointed three supervisors of the contact between the Claimant and the children. On 10 August 2001 the court ordered by consent that the Defendants should prepare a report under s.37 of the Children Act 1989 ("the Report") on the family and on the sexual abuse allegations against the Claimant and the stepson. On about 11 September the Second Defendant instructed the First Defendant to investigate and make the Report. The First Defendant interviewed a number of witnesses, of whom the ones material to this claim are the Claimant and three Supervisors, and the daughter of Supervisior 2. He produced the Report on 31 October 2001.
6. As summarised in APOC, the Report concluded that it was impossible to tell what the truth of the accusations made against each other by the Claimant and his wife, recommended that the truth of the allegations by the daughter against the Claimant of abuse be assessed by a child psychiatrist, and that there be a psychological assessment of the Claimant and his wife. The Report also purported to summarise the evidence taken from the Supervisors and the Claimant.
7. The Claimant considered that the Report contained inaccurate information, in particular as to what two of the Supervisors had said in interview.
8. An example of alleged inaccuracy is as follows. At para 12.4 of the Report the First Defendant recorded that Supervisor 2 had stated that the Claimant had been very excited about a comment that his daughter had made to him that his wife had asked her to tell the police that the Claimant had abused her. The allegedly forged notes are to the same effect. But according to Supervisor 2, what Supervisor 2 had said was that the Claimant was calm, not excited, when he heard his daughter say this. Another example is that at para 14.4 the First Defendant recorded that Supervisor 1 had stated that on an occasion when his daughter admitted to lying to the police the Claimant had been upstairs, and had come downstairs to ask Supervisor 1 to come upstairs because his daughter had something to say. According to Supervisor 1, Supervisor1 had told the First Defendant that she was herself upstairs throughout this incident.
9. On 6 December 2001 the court ordered the First Defendant to disclose his notes of the interviews to the person appointed to be Guardian of the children. On 4 February 2002 the Guardian reported that she had read notes disclosed by the First Defendant and that the Report followed the notes closely, and that there was no evidence that the Report misrepresented, minimised or embroidered information contained in the interview records. On 18 February 2002 the Guardian prepared her own report. On 25 February 2002 the court ordered disclosure of the First Defendant's notes to the Claimant.
10. On 19 March 2002, having read the notes disclosed by the First Defendant, the Claimant alleged that they were forgeries and that the notes misrepresented what he and two of the Supervisors had told the First Defendant in interview. The alleged inaccuracies include those which are summarised above in relation to the Report.
11. In addition the Claimant also complains that the allegedly forged notes omitted a number of matters which the Supervisors said that they had told the First Defendant, and which they said they saw the First Defendant writing notes about during the interview. These omissions include, for example, that Supervisor 2 informed the First Defendant of an incident when the stepson abused the daughter and how the wife had reacted by trying to pressure the daughter of Supervisor 2 into retracting an account she had given.
12. Eventually, on 2 October 2002 the court made an order by consent which recorded that the Claimant had not sexually abused either of his children and that the daughter's allegation against him were not coached by the wife.
13. The gist of the claim in this action is that the proceedings were delayed as a result of the disclosure by the First Defendant of forged and false notes. The outcome that was reached on 2 October 2002 would have been reached in January, alternatively May 2002. It is said that this caused loss and damage to the Claimant. He claims he had to tell his employer about the allegation, and that the delay in obtaining the vindication he did obtain resulted in very large financial losses.
14. The original Particulars of Claim cover 13 pages. On 13 March 2008 the Defendants served a Defence. In respect of the Report the Defence raises a plea of immunity attaching to judicial proceedings. It denies that there were any inaccuracies, or any material inaccuracies. There is pleaded a detailed case as to how the notes had been prepared contemporaneously with what those being interviewed had said. It is pleaded that any errors or omissions were not the result of any intention to deceive or other dishonesty. It also alleges that, following a report from the psychiatrist stating that a full report was required (a copy of which is before me), the order for the psychiatric assessment was made by consent (as is recorded in the Order dated 9 May 2002) and that these proceedings are an impermissible collateral attack on that consent order.
15. On 12 June 2008 the Claimant served a Reply.
16. On 27 January 2009 the Defendants issued their application for summary judgment. On 22 June 2009 the Master ordered the Claimant to serve (no later than 31 July 2009) a draft Amended Particulars of Claim to make good the defects he had found in the original. These were that it was set out in a manner that made it unfairly hard to understand the Claimant's real case, that it was too long, and that in particular there was no real attempt to explain the case on causation. The Master found that the original Particulars of Claim disclosed no reasonable cause of action and he referred to CPR3.4(2). He adjourned the application for summary judgment
17. On 31 July 2009 the Claimant served APOC. This is 32 pages long. On 22 December 2009 the Master granted the application for summary judgment. The main reasons given by the Master can be seen from the Grounds of Appeal which read as follows:

"1. The Master erred in fact and/or in law in concluding that the Claimant's claim was an abuse of process by reason of being a challenge to the decision of the County Court, as that decision was not between the present parties and was by consent.

2. The Master erred in fact and/or in law in concluding that the Claimant's claim in misrepresentation showed no reasonable ground for bringing the claim and/or was an abuse of process on the grounds that the Guardian was not his agent for receiving the allegedly forged notes, when it was arguable that she was.

3. The Master erred in fact and /or in law in concluding that the claim for malicious falsehood disclosed no reasonable ground for bringing the claim and /or was an abuse of process on the grounds that it was statute barred, when there were good reasons for the delay in bringing the proceedings.

4. The Master erred in law in concluding that the Claimant's claim for malicious falsehood was subject to absolute privilege, when it was not.

5. The Master erred in fact in misstating and misunderstanding the Claimant's case on causation.

6. The Master erred in law in concluding that causation was to be judged on the basis of the balance of probabilities, when in fact it was to be judged on the basis of the loss of a chance.

7. The Master erred in fact and in law in apparently holding that the Claimant's claim should be struck out because the Claimant had not obtained evidence to support the present claim from the Guardian.

8. The Master erred in fact and /or in law in concluding that the Claimant's case on causation was bound to fail.

9. The Master erred in fact and /or in law in concluding the Amended Particulars of Claim disclosed no reasonable ground for bringing the claim and /or was an abuse of process.

10. The Master erred in fact and/or in law in striking out the Claimant's original Particulars of Claim, which were a succinct statement of the relevant facts".

18. The defects in the original pleading identified by the Master arise from the fact that original particulars of claim are in the form of a narrative, in which no attention appears to have been paid to the need to identify and aver the facts necessary for success on any of the causes of action relied on. APOC is barely an improvement. The result is that a disproportionate amount of time was spent by the Master and by me in attempting to understand whether in the mass of detail pleaded there can be found the essential averments necessary to establish a cause of action.
19. The Skeleton Argument for the Claimant suffers from similar defects. There is no attempt to address the elements of any of the three causes of action referred to. The words "forgery" and "fabrication" are deployed as if they referred to a cause of action, whereas forgery or fabrication are at most one element in a number of possible causes of action. This lack of focus appears from the opening words:

"C sues D for dishonestly fabricating notes of interviews after they had produced a report pursuant to s.37 of the Children's Act 1989…"

MISFEASANCE IN PUBLIC OFFICE

20. The elements of the cause of action in misfeasance in public office are summarised by Lord Steyn in Three Rivers DC v Bank of England (No 3) [2000] 2 WLR 1220 at 1231. The defendant must be a public officer, and the conduct complained of must be in the exercise of public functions. As to the state of mind of the public officer he said:

"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."

21. It is essential that the claim should include a plea of one or other of these states of mind. But there is no reference to either in the APOC.
22. In the present case complaint is not made about the Report itself. What is complained of is the production of what are said to be forged notes of the interviews. The Claimant alleges that if the true notes had been disclosed, the Guardian would have concluded that the notes did not support the Report. Accordingly there would have been no need for any psychiatric assessment, or (and this is the Claimant's alternative case) the psychiatric assessment would have taken place earlier. On either alternative, a hearing fixed for 5 days on 20 May would not have had to be vacated. The claim is said to be based on the loss of a chance that the conclusion which the proceedings did reach in October 2002 would thus have been reached either 9 months, or 5 months, earlier.
23. A number of alternative scenarios are canvassed. For example, the Claimant alleges that if what he calls the true notes had been lost, and the First Defendant had confessed to this (instead of forging substitute notes) then the Claimant and the Supervisors would have been quickly re-interviewed, and the Guardian would not have recommended the psychiatric report which she did recommend.
24. What the Claimant does say about the First Defendant's state of mind is this. He alleges in APOC that the First Defendant forged the notes in order to cover up inaccuracies in the Report about which the Claimant had by then complained, or in order to support what he had written in the Report, or to counter the criticisms of the Report made by the Claimant. It is said that he did this in order to induce the Guardian and the Claimant to accept them as a contemporary record, when they were not.
25. But in his Reply, which is not signed by counsel, he makes an alternative plea as to the First Defendant's state of mind:

"… it may be that rather than [the First Defendant] falsifying his Notes in fear of a Production Order, some time after filing his Report in late October 2001, as had been reasonably assumed on the basis of the long delay in the Notes' disclosure, he may instead have falsified them as he went along; taking his notes in the small notebooks and pads, which the witnesses saw him use, and then improperly rewriting them neatly into his official notebook, shortly or immediately after each interview This would not be surprising in a new employee …".

26. It is clear that both alternative allegations as to why the First Defendant supposedly forged his notes are entirely speculative. They are based on no more than an assumption that there must be excluded from consideration any innocent explanation for any differences there may be between what Supervisors 1 and 2 say, and what the First Defendant says.
27. Given what is said, and not said, in the APOC about the First Defendant's state of mind, the plea of misfeasance in public office not only has no real prospect of success: it has no prospect at of success at all.
28. Moreover the case in causation is equally speculative. It is unreal to compare this case to well known cases where claimants have recovered damages for loss of a chance. These Family proceedings were complex, involving the decisions and recommendations of numerous individuals, each of whose judgments were, or should have been, directed to the welfare of the children. But the outcome that was eventually achieved in October 2002 depended upon the consent of both the Claimant and the wife in circumstances where they had been bitterly at odds for a long time, and in which the Claimant alleges the wife was behaving unreasonably.

DECEIT

29. The elements of the tort of deceit are that the defendant has made a false representation, knowing it to be false (or reckless as to whether it is true or false), that he intends that the claimant should act in reliance upon it, that the claimant has in fact relied upon it, and as a result the claimant has suffered loss.
30. No attempt has been made in the APOC to address the elements of this tort. On the contrary, what is plainly pleaded is that the Claimant did not rely upon the allegedly false representation (namely that the notes disclosed by the First Defendant were genuine). He has throughout adopted the position that they were forgeries. The only reliance that is pleaded is that by the Guardian, but in so far as she may have acted in reliance on the notes in making (or not changing) her recommendations, then she plainly did so in her capacity as Guardian. The Claimant cannot found a claim in deceit upon that.
31. The case in causation also fails for the same reasons as discussed above.

MALICIOUS FALSEHOOD

32. The elements of the tort of malicious falsehood include that the defendant has published a statement of fact to a third party, that the statement is about the claimant (or his property), that the statement is false, and that the defendant knew that it was false (or was reckless as to whether it was true or false).
33. The APOC does not attempt to address these elements of the tort. There is nowhere set out what is the statement of fact about the claimant that is said to be false. Rather the pleader appears to have assumed that any false statement on any topic will found the tort.
34. The Master also took into consideration the obvious fact that the claim in malicious falsehood is statute barred. The Claimant submits that he has an arguable case for an extension under s.32A of the Limitation Act. The submission is hopeless.

CAUSATION

35. In addition to the defects in the case on causation referred to above, there is a further defect. No attempt has been made to relate the case in causation and damage to any particular tort. It is pleaded as if causation and damage would be the same for all three torts.

CONCLUSION

36. There are a number of matters raised in the Grounds of Appeal which I need not address in the light of the conclusion that I have reached on the points that I have addressed.
37. The application for permission to appeal is refused because there is no real prospect of success in any appeal.