Neutral Citation No:  NIMaster 7
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
"(1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything and any pleading or the endorsement, on the ground that –
(a) It discloses no reasonable cause of action or defence, as the case may be; or
(b) It is scandalous, frivolous or vexatious; or
(c) It may prejudice, embarrass or delay the fair trial of the action; or
(d) It is otherwise an abuse of the process of the court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application under paragraph (1)(a)."
" For the purposes of the application, all the averments in the Statement of Claim must be assumed to be true. (See O'Dwyer v Chief Constable of the RUC (1997) NI 403 at p. 406C).
 O'Dwyer's case is authority also for the proposition that it is a "well settled principle that the summary procedure for striking out pleadings is to be used in plain and obvious cases." The matter must be unarguable or almost incontestably bad (see Lonrho plc v Fayed (1990) 2 QBD 479).
 In approaching such applications, the court should be appropriately cautious in any developing field of law particularly where the court is being asked to determine such points on assumed or scanty facts pleaded in the Statement of Claim. Thus in Lonrho plc v Tebbit (1991) 4 All ER 973 at 979H, in an action where an application was made to strike out a claim in negligence on the grounds that it raised matters of State policy and where the defendants allegedly owed no duty of care to the plaintiff regarding exercise of their powers, Sir Nicholas Brown-Wilkinson V-C said:
"In considering whether or not to decide the difficult question of law, the judge can and should take into account whether the point of law is of such a kind that it can properly be determined on the bare facts pleaded or whether it would not be better determined at the trial in the light of the actual facts of the case. The methodology of English law is to decide cases not by a process of a priori reasoning from general principle but by deciding each case on a case-by-case basis from which, in due course, principles may emerge. Therefore, in a new and developing field of law it is often inappropriate to determine points of law on the assumed and scanty, facts pleaded in the Statement of Claim.
(See also E (A Minor) v Dorset CC (1995) 2 AC 633 at 693-694).
 Where the only ground on which the application is made is that the pleading discloses no reasonable cause of action or defence no evidence is admitted. A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered. So long as the Statement of Claim or the particulars disclose some cause of action, or raise some question fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out."
The Duty of Care in Negligence
"Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further, it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure, for example that a police officer negligently tripped and fell while pursuing a burglar, others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and re-traversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell LJ, in his judgment in the Court of Appeal in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley were held to render a barrister immune from actions for negligence in his conduct of proceedings in court"
" This is not to say there is immunity from liability in negligence for police officers in all circumstances. Whilst the shortcomings of the police in individual cases cannot undermine the core principle nonetheless that principle has some ragged edges. It is well established that there are exceptional cases on the margins which will have to be considered if and when circumstances appropriately arise."
" An 'immunity' is generally understood to be an exemption based on a defendant's status from a liability imposed by the law on others, as in the case of sovereign immunity. Lord Keith's use of the phrase was, with hindsight, not only unnecessary but unfortunate. It gave rise to misunderstanding, not least at Strasbourg. In Osman v UK (1998) 5 BHRC 293 the Strasbourg court held that the exclusion of liability in negligence in a case concerning acts or omissions of the police in the investigation and prevention of crime amounted to a restriction on access to the court in violation of art 6. This perception caused consternation to English lawyers. In Z v UK (2001) 10 BHRC 384 the Grand Chamber accepted that its reasoning on this issue in Osman was based on a misunderstanding of the law of negligence; and it acknowledged that it is not incompatible with art 6 for a court to determine on a summary application that a duty of care under the substantive law of negligence does not arise on an assumed state of facts."
" In Van Colle threats were made against a prosecution witness in the weeks leading to a trial. They included two telephone calls from the accused to the witness. The second call was aggressive and threatening but contained no explicit death threat. The witness reported the threats to the police. The matter was not treated with urgency. An arrangement was made for the police to take a witness statement, after which the police intended to arrest the accused, but in the interval the witness was shot dead by the accused. His parents brought a claim against the police under the Human Rights Act 1998 relying on arts 2 and 8 of the Convention. There was no claim under common law. The police were held liable at first instance ( EWHC 360 (QB),  3 All ER 963), and failed in an appeal to the Court of Appeal ( EWCA Civ 325,  3 All ER 122,  1 WLR 1821), but succeeded in an appeal to the House of Lords.
 The House of Lords applied the test laid down by the Strasbourg court in Osman v UK (1998) 5 BHRC 293 (para 116) for determining when national authorities have a positive obligation under art 2 to take preventative measures to protect an individual whose life is at risk from the criminal acts of another:
'it must be established to [the court's] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'
 The critical question of fact was whether the police, making a reasonable and informed judgment at the time, should have appreciated that there was a real and immediate risk to the life of the victim. The House of Lords held that the test was not met.
 Smith  3 All ER 977,  AC 225 reached the House of Lords on an application to strike out. The question was whether the police owed a duty of care to the claimant on the assumed facts. The claimant was a victim of violence by a former partner. He had suffered violence at the hands of the other man during their relationship. After it ended, he received a stream of violent, abusive and threatening messages, including death threats. He reported these matters to the police and told a police inspector that he thought that his life was in danger. A week later the man attacked the victim at his home address with a claw hammer, causing him fractures of the skull and brain damage. The assailant was subsequently convicted of making threats to kill and causing grievous bodily harm with intent. The House of Lords held by a majority that the police owed the victim no duty of care in negligence."
" Besides the provision of such services, which are not peculiarly governmental in their nature, it is a feature of our system of government that many areas of life are subject to forms of state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society (or sometimes from natural disasters). Licensing of firearms, regulation of financial services, inspections of restaurants, factories and children's nurseries, and enforcement of building regulations are random examples. To compile a comprehensive list would be virtually impossible, because the systems designed to protect the public from harm of one kind or another are so extensive.
 It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.
 The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. Examples at the highest level include Yuen Kun-yeu v A-G of Hong Kong 2 All ER 705,  AC 175 and Davis v Radcliffe  2 All ER 536,  1 WLR 821 (no duty of care owed by financial regulators towards investors), Murphy v Brentwood DC (no duty of care owed to the owner of a house with defective foundations by the local authority which passed the plans), Stovin v Wise and Gorringe v Calderdale Metropolitan BC (no duty of care owed by a highway authority to take action to prevent accidents from known hazards).
 The question is therefore not whether the police should have a special immunity, but whether an exception should be made to the ordinary application of common law principles which would cover the facts of the present case."
Article 2, the Right to Life
"Everyone's right to life shall be protected by law". As Lord Dyson has explained it is now clear that this simple sentence imposes 3 distinct obligations on the State. The first, which does not arise here, is the negative obligation, not itself to take life except in limited cases provided for in Article 2(2). The second, which does not arise here, is the positive obligation to conduct a proper investigation into any death to which the State might bear some degree of responsibility. And the third, with which this case is concerned is the positive obligation to protect life. As a general rule, the positive obligation is fulfilled by having in place laws and a legal system which deter threats to life from any quarter and punishes their perpetrators or compensates the victims if deterrence fails. In the health care context, this also entails having effective administration and regulatory systems in place, designed to protect patients from professional incompetence resulting in death, but it is not suggested that English law and the English legal system are defective in this respect".
"…. As Lord Bingham pointed out in R (Greenfield) v Sec. of State for the Home Department  1 WLR 673 , Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights. That is why the time limits are markedly shorter….It is also why s.8(3) of the Act provides that no damages are to be awarded unless necessary for just satisfaction…"
Section 8(3) provides:
"No award of damages is to be made unless, taking into account of all the circumstances of the case, including-
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
The court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made."
"The Court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the time listed in Section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend the time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent of which, having regard to the delay, the evidence in the case is or likely to be less cogent than it would have been if the proceedings had been issued within a 1 year period; and the conduct of the public authority after the right to claim arose, including the extent (if any) to which it responded to any request reasonable made by the Plaintiff for information for the purposes of ascertaining facts".
"(5) Proceedings under subsection (1)(a) must be brought before the end of –
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
"In MT Rix LJ at paragraph 30 highlighted that section 7 [of the HRA] made no exception with regards to a child claimant as well as noting the policy reasons for Parliament adopting a much tighter limitation period in HRA claims against public authorities compared with common claims in tort and contract governed by the Limitation Act 1980:
"Thirdly Mr Simblet submitted that insufficient weight was given to the fact time would not have been running against the Claimant if his claim had been under the Fatal Accidents Act or in negligence. In my judgment this submission is of no value whatsoever. Plainly the judge expressly had in mind both the position under the Limitation Act and the fact that the HRA made no exception for a minor … In fact if anything, the judge made quite light of the fact that it is a striking feature of section 7 that it provides a limitation period of only one year to be contrasted strongly with the much longer period allowed under the Limitation Act, and indeed makes no allowance in respect of a minor. The clear inference is that, in the case of such claims against public authorities, perhaps reflecting the tight three month time limit for judicial reviews, it is considered right that there should be really quite tight limitation periods. The judge made little of that factor but in my judgment could well have made more."
"I have already set out the observations of Rix LJ in MT. There are other authorities which make the same point as to the underlying reason for the shortness of the primary limitation period in claims against public authorities under the HRA. See for example Lord Brown [Van Colle] at paragraph 138. I concur with the views stated by Jay J in Bedford at paragraph 76 that the court must take into account that the primary limitation period under the HRA is one year, not three years, and it is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are by definition brought against public authorities and there is no public interest in these being burdened by expensive, time consuming and tardy claims brought years after the event."
That seems to reflect a modern trend towards a more rigorous enforcement of the one year time limit in Convention claims.