High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Neill v. Wilson [1998] NIQB 2; [1999] NI 1 (24th September, 1998)

24th September 1998

SHEJ2632 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

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BETWEEN:

PETER NEILL

Plaintiff;

AND

RICHARD WILSON

Defendant.

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SHEIL J

JUDGMENT

1. This is an appeal by the plaintiff from an Order made by Master Kennedy on 26th January 1998 whereby she ordered that the plaintiff's Writ of Summons and Statement of Claim against the defendant for damages for wrongful imprisonment be struck out pursuant to Order 18 rule 19 of the Rules of the Supreme Court (Northern Ireland) 1980 on the ground that they disclose no reasonable cause of action and that they are an abuse of the process of the Court. The Order was made on foot of a summons taken out by the defendant on 11th September 1997 and was grounded on the affidavit of Mr Kenneth Boyd of the Crown Solicitor's Office dated 11th September 1997. The plaintiff filed a replying affidavit on an unspecified date in late October 1997 and the defendant himself swore an affidavit on 19th January 1998 in relation to the matter.

2. This summons by the defendant is brought under Order 18 rule 19(1) of the Rules of the Supreme Court (Northern Ireland) 1980, which provides:

"The court may at any stage of the proceedings order to be struck out or amended any pleading of the endorsement of any writ in the action, or anything in any pleading or in 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."

3. Mr McCloskey in his submission to this court stated that he relied only on sub-paragraphs (a) and (d) of the aforesaid rule and/or the inherent jurisdiction of the court.

4. This litigation arises out of the committal for trial in custody of the plaintiff by the defendant, a Resident Magistrate, on 2nd August 1991 on four charges, following a preliminary inquiry. In the course of the preliminary inquiry the learned Resident Magistrate erroneously admitted in evidence the statements of two witnesses who were afraid to give evidence; those two statements formed the most important part of the evidence against the defendant in respect of three of the four charges against him. The charges arose out of an incident on 25th February 1991 when a man using a cash dispenser outside a bank was set upon and had his wallet stolen; a short time later the man's car, which was also stolen, was stopped by the police and then, allegedly, the plaintiff who was a front seat passenger in the car jumped out and ran away. As a result the plaintiff and three other men were charged with four offences namely assault occasioning actual bodily harm, theft, taking a motor vehicle without consent, and using a vehicle without insurance. That fourth charge of using a motor vehicle without insurance is not punishable by imprisonment and the learned Resident Magistrate had no power to remand the plaintiff in custody in respect of that charge if it had stood alone. The plaintiff remained in custody until his release on bail on 26th October 1991. The Order for Committal in custody made by the defendant on 2nd August 1991 was challenged by the plaintiff by way of judicial review and that order was eventually quashed by the House of Lords on 12th November 1992.

5. In his Statement of Claim served on 28th September 1993 the plaintiff alleged in paragraph 8 that the learned Resident Magistrate in making the Order for Committal and remanding the plaintiff in custody "acted wrongly and without or alternatively in excess of jurisdiction and without reasonable cause", particulars of which were set out in paragraph 8; the Statement of Claim then went on to claim damages for wrongful imprisonment. On receiving the defendant's defence served on 11th November 1993 in the course of which in paragraph 9 the defendant, relying on Section 109 of the Courts and Legal Services Act 1990, pleaded that "the plaintiff has no cause of action against the defendant in respect of any act or omission of the defendant in the execution of his duty with respect to any matter within his jurisdiction or alternatively in respect of any act or omission in the purported exercise of his duty with respect to a matter which is not within his jurisdiction in the absence of bad faith", the plaintiff sought leave to amend his Statement of Claim to plead bad faith. The Statement of Claim was subsequently amended on 29th March 1997, the defendant through his counsel having neither consented nor opposed the said application. The amendment was made by adding to paragraph 8 of the Statement of Claim the words "and with bad faith within the meaning of Section 109 of the Courts and Legal Services Act 1990".

Section 109 of the Courts and Legal Services Act 1990, which came into force on 1st January 1991 amended the Magistrates Courts (Northern Ireland) Order 1981 by substituting for Articles 5 and 6 the following Articles:

"5. No action shall lie against any resident magistrate, justice of the peace or clerk of petty sessions in respect of any act or omission of his -

(a) in the execution of his duty -

(i) as such a magistrate or justice, or

(ii) as such a clerk exercising, by virtue of any statutory provision, any function of a magistrates court; and

(b) with respect to any matter within his jurisdiction.

6. An action shall lie against any resident magistrate, justice of the peace or clerk of petty sessions in respect of any act or omission of his -

(a) in the purported exercise of his duty -

(i) as such a magistrate or justice; or

(ii) as such a clerk exercising, by virtue of any statutory provision, any function of a magistrates court; but

(b) with respect to a matter which is not within his jurisdiction,

if, but only if, it is proved that he acted in bad faith."

6. It is accepted by Mr Ferris QC, who appeared with Mr Valentine for the plaintiff, that if the learned Resident Magistrate was acting within his jurisdiction no such action as that brought by the plaintiff can lie and that if he was acting outside his jurisdiction no such action can lie unless the plaintiff proves that the learned Resident Magistrate acted in bad faith.

7. There is no direct authority in this jurisdiction as to the distinction between acting within jurisdiction as distinct from acting not within jurisdiction in the context of Section 109 of the Courts and Legal Services Act 1990. Nor is there any authority under the identical provisions now in force in England, namely Sections 44 and 45 of the Justices of the Peace Act 1979 as amended by Section 108 of the Courts and Legal Services Act 1990.

8. Prior to the amendments made to Articles 5 and 6 of the Magistrates Courts (Northern Ireland) Order 1981 by Section 109 of the Courts and Legal Services Act 1990, the House of Lords in a Northern Ireland case had considered the question of whether justices acted "within jurisdiction or in excess of jurisdiction" within the meaning of Section 15 of the Magistrates Courts Act (Northern Ireland) 1964 which was in identical terms to Article 5 of the Magistrates Courts (Northern Ireland) Order 1981 prior to its amendment by Section 109 of the 1990 Act. In that case, In re McC [1985] 1 AC 528, the House of Lords held that although justices had jurisdiction to try and to convict the defendant who was before them of the offence charged and to order his detention, their omission to inform him of his right to Legal Aid where a custodial sentence might be imposed amounted to a failure to fulfil a statutory condition precedent to the making of a training school order and that the justices had acted "without jurisdiction or in excess of jurisdiction" within the meaning of Section 15 of the Magistrates Courts Act (Northern Ireland) 1964, thus rendering them liable in a civil action for damages. In the course of his judgment Lord Bridge stated at page 546E:

"But once justices have duly entered upon the summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceedings to a determination can oust their jurisdiction so as to deprive them of protection from civil liability for a subsequent trespass. As Johnston v Meldon 30 LR IR 15 shows, an error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction; Rex (Martin) v Mahony [1910] 2 IR 695; Rex v National Bell Liquors Limited [ 1922] 2 AC 128. It is clear, in my opinion, that no error of law committed in reaching a finding of guilt would suffice, even if it arose from a misconstruction of the particular legislative provision to be applied, so that it could be said that the justices had asked themselves the wrong question. I take this view because, as I have intimated earlier, I do not believe that the novel test of excessive jurisdiction which emerges from the Anisminic Case [1969] 2 AC 147, however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of Section 15 of the Northern Ireland Act of 1964 or Section 45 of the Act of 1979.

Justices would, of course, be acting 'without jurisdiction or in excess of jurisdiction' within the meaning of Section 15 if, in the course of hearing a case within their jurisdiction they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what happened during his absence, or the rules of natural justice, as for example if the justices refuse to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods would not, in my opinion, necessarily expose the justices to liability and damages."

9. Having referred to Groome v Forrester (1816) 5 M&S 314, M'Creadie v Thompson [1907] SC 1176 and O'Connor v Isaacs [1956] 2 QB 288, Lord Bridge continued at page 549B:

"These three cases establish the clear principal that justices, though they have 'jurisdiction of the cause' and conduct the trial impeccably, may nevertheless be liable in damages on the ground of acting in excess of jurisdiction if their conviction of the defendant before them or other determination of the complaint against him does not provide a proper foundation in law for the sentence imposed on him or order made against him and in pursuance of the sentence or order he is imprisoned or his goods are seized."

10. Continuing at page 551H Lord Bridge asked:

"Can it be said that the appellant's omission to inform the respondent of his right to apply for Legal Aid was a mere procedural irregularity? I have reached the conclusion that it cannot. The language of Article 15(1) of the Order of 1976, in any case in which it applies, prohibits in the clearest terms the imposition of any of the custodial sentences mentioned unless one or other of the conditions referred to in paragraphs (a) and (b) of the sub-section has been satisfied."

11. Lord Templeman in the course of his judgment stated at page 558D:

"In my opinion the authorities disclose that a magistrate is not liable in damages for the consequences of an unlawful sentence passed by him in his judicial capacity in a properly constituted and convened court if he has power to try the offence and the offender, duly convicts the offender of the offence and imposes a sentence which he has power to impose for the offence and on the offender. If the magistrate fails to convict the offender of the offence or if he imposes a sentence which he has no power to impose on the offender for the offence he acts without jurisdiction and if the sentence results in imprisonment, is liable to the accused in a civil action for damages for false imprisonment.

If in the course of a trial which a magistrate is empowered to undertake, the magistrate misbehaves or does not accord the accused a fair trial, or is guilty of some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed but the magistrate acting as such acts within jurisdiction. Similarly if the magistrate after a lawful trial imposes a sentence which he is authorised to impose on the defendant for the offence, but follows a procedure which is irregular, the sentence may be quashed but the magistrate acts within jurisdiction."

12. Lord Templeman concluded at page 559A that "This appeal demonstrates that the time is right for the legislature to reconsider the liability of a magistrate and the rights of a defendant if an unlawful sentence results in imprisonment". Mr McCloskey who appeared on behalf of the defendant, the learned Resident Magistrate, in the present case submits that In re McC [1985] 1 AC 528 has to be regarded in the light of the fact that Parliament subsequently amended the legislation on this subject in the light of that decision, which submission is clearly correct, by enacting the provisions of the Courts and Legal Services Act 1990 to which I have referred above.

13. When this matter was before the House of Lords under the title Neill v North Antrim Magistrates Court [1992] 4 All ER 846 in the plaintiff's application for judicial review, Lord Mustill delivering the opinion of the House stated at page 855J that what had happened before the magistrate's court revealed "what in the vocabulary of judicial review would be called a breach of natural justice". He immediately went on to add at page 856A:

"This term has overtones which seem to me inappropriate to the present case. I prefer to say that as the result of a bona fide but mistaken ruling on a procedural matter the appellant has suffered real prejudice. There has been a material irregularity in the conduct of the committal; or, if one prefers the transatlantic terminology, a want of due process. Does the Divisional Court have power to intervene in such a case?

That committal proceedings are in principle susceptible to judicial review is beyond a doubt, and the fact that certiorari will lie in cases of procedural irregularity in such proceedings is I believe also quite clear."

14. Having referred to some recent statements in cases on this point Lord Mustill continued at page 867D:

"The question is, however, whether the reception of inadmissible evidence will found this remedy. As with many problems of judicial review, this question does not admit of an outright answer. Everything depends on the circumstances.

Thus, I think it would be impossible to maintain that all errors of this kind on the part of examining magistrates must necessarily be fatal to the committal. The situation is far removed from that which existed in cases such as Gee, Bibby & Dunscombe [1936] 2 KB 442, Phillips & Quayle [1939] 1 KB 63 and Wharnby v Lindley (1946) 31 Cr App Rep 174 where the departure from the requirements of the Indictable Offences Act 1848 was so radical as to render the indictment, and hence the resulting trial, a nullity. Whatever the current state of the law about the difference between void and voidable adjudications, it could not sensibly be said that in the present case the resident magistrate's error entailed that there was no committal at all.

On the other hand I do not believe that under the current legislation the receipt of inadmissible evidence is invariably a matter of no consequence."

15. At page 857J Lord Mustill continued:

"Accordingly, in the special circumstances of this case I consider that the admission of inadmissible evidence was not a harmless technical error, but was an irregularity which had substantial adverse consequences for the appellant and that accordingly the court should have intervened to quash the committal."

16. Turning to the sufficiency of evidence and having referred to R (Blakeney) v Roscommon Justices [1894] 2 IR 158, Lord Mustill continued at page 858F:

"Much has happened in the world of judicial review since Roscommon was decided, and meanwhile the grand jury has disappeared. At that time the distinction between the assumption of a jurisdiction which does not exist and an error in the exercise of a jurisdiction which does exist was very clearly drawn. What if anything remains of this distinction is a question of great importance which cannot be properly embarked upon here. It may be that some consideration will have to be given on some future occasion to Schtraks v Government of Israel [1962] 3 All ER 529, [1964] AC 556 and Government of the Federal Republic of Germany v Sotiriadis [1974] 1 All ER 692, [1975] AC 1 in the light of more recent decisions of this House. If it does transpire that this distinction has been eroded sufficiently to admit a theoretical possibility of judicial review in a case like the present then it will have to be considered whether as a matter of policy the court should entirely abstain from intervening, for fear of being submerged by a flood of worthless applications from defendants anxious to postpone the evil day."

17. While the House of Lords quashed the plaintiff's committal for trial in respect of three of the four charges against him for the reasons appearing in the opinion of Lord Mustill, I consider that the learned Resident Magistrate's error in admitting the inadmissible evidence was "an act with respect to a matter within his jurisdiction" and that accordingly the plaintiff's action against him cannot lie and that it ought to be struck out under Order 18 rule 19(1)(a) and/or under the inherent jurisdiction of the court. I so order and order that judgment be entered for the defendant.

18. If I am wrong in this conclusion and the learned Resident Magistrate's act in admitting the inadmissible evidence was not an act with respect to a matter within his jurisdiction, the question arises whether the learned Resident Magistrate acted in bad faith in admitting the inadmissible evidence, because in the absence of bad faith, as already stated, no action can lie against him by reason of the provisions of Article 6 of the Magistrates Courts (Northern Ireland) Order 1981 as amended by Section 109(2) of the Courts and Legal Services Act 1990.

19. What is meant by bad faith? In De Smith's Judicial Review of Administrative Action, 5th Edition at paragraph 13-010, the learned authors state:

"Fundamental to the legitimacy of public decision-making is the principle that official decisions should not be infected with motives such as fraud (or dishonesty), malice or personal self- interest. These motives, which have the effect of distorting or unfairly biasing the decision-maker's approach to the subject of the decision, cause the decision to be taken in bad faith or for an improper purpose (the term 'improper' here bearing a connotation of moral impropriety). Some of the decisions based on bad faith will also violate the ground of illegality, as the offending motive may take the decision outside the 'four corners' of the authorised power. Irrespective whether this be so any ingredient of bad faith may in itself cause a decision to be invalid."

In Caanock Chase Council v Kelly [1978] 1 WLR 1 at 6E, Megaw LJ stated:

"It always involves a grave charge. It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant."

20. In the instant case Mr McCloskey submits that the matter is res judicata because Lord Mustill in delivering the opinion of the House of Lords in the plaintiff's application for judicial review stated at page 856A that the learned Resident Magistrate's error was the result of a bona fide but mistaken ruling on a procedural matter. Mr McCloskey referred to paragraph 18/19/20 of the Rules of the Supreme Court 1997, Volume 1 at paragraph 18/19/20 where it is stated that even though a plea of res judicata might not strictly be an answer to the action, it is enough if substantially the same point has been decided in a prior proceeding. As the plaintiff did not argue or seek to rely upon bad faith as one of the grounds for his application for judicial review before the House of Lords, I do not consider that the matter is res judicata.

21. In his application for judicial review which was decided finally in his favour by the House of Lords, the applicant, as already stated, made no allegation of bad faith against the defendant, which allegation, if substantiated, would have been a ground in itself for an Order of Certiorari to quash the committal decision. Mr Ferris QC on behalf of the plaintiff states that it was unnecessary to include such an allegation in the judicial review application as there were already good grounds for quashing the decision for the reasons given by the House of Lords, reversing the Divisional Court. I find it very difficult to accept this explanation for its non-inclusion. Further it is to be noted, as already stated, that when the Writ of Summons and Statement of Claim were served in this case no allegation of bad faith was made against the learned Resident Magistrate and it was only when the defence was delivered, pleading the provisions of Articles 5 and 6 of the Magistrates Courts (Northern Ireland) Order 1981 as amended by Section 109 of the Courts and Legal Services Act 1990, that steps were taken to amend the Statement of Claim to plead bad faith on the part of the defendant; particulars thereof in essence amounted to an allegation that the defendant allowed his knowledge of the plaintiff's previous criminal record to affect him in committing him for trial, he having previously sentenced him in July 1990 to three months imprisonment. The plaintiff in his undated affidavit sworn in late October 1997 in a response to the defendant's present summons in this matter averred in paragraphs 2 and 3 as follows:

"2. The defendant prior to the committal order that is the subject of this action was aware of my criminal record and then current pattern of offending. On at least two occasions prior to that committal order he disqualified himself from hearing contested matters involving me and used words in open Court to the effect that he knew me better than the defence solicitor.

3. I believe that the defendant's knowledge of my record gives rise to the inference that when he made the said committal order his personal knowledge and dislike of my criminal record and then behaviour influenced his decision, and that he acted with bad faith accordingly."

22. The defendant, Mr Richard Wilson RM, in a replying affidavit dated 19th January 1998 averred, inter alia, in paragraph 4 that "as a matter of historical fact, I disposed of cases involving the plaintiff on two occasions only prior to 2nd August 1991" of which he then gives details. In paragraph 6 he goes on to state that "there may have been other occasions prior to 2nd August 1991 when I was involved in simple adjournments of cases concerning the plaintiff". In paragraph 7 of his affidavit the defendant further avers:

"I have dealt with criminal proceedings against the plaintiff subsequent to 2nd August 1991. Neither the plaintiff nor his solicitors have suggested that I discharge myself on any of these occasions, notwithstanding that on one particular occasions I specifically offered to do so. On that occasion it was confirmed to me by the plaintiff's solicitors that they were happy for me to deal with the matter."

23. In paragraph 8 of his affidavit the defendant concludes:

"My predecessor, Mr Jack, the Resident Magistrate in North Antrim district until 1993 would have been very well acquainted with the plaintiff and I can only think that the averments in paragraph 2 of the plaintiff's affidavit are directed to Mr Jack, rather than me. As appears from the foregoing, the plaintiff is gravely mistaken in making these averments against me."

24. Mr McCloskey referred to the decision in O'Dwyer v Chief Constable of the Royal Ulster Constabulary [1997] NI 403 where Carswell LCJ, delivering the judgment of the court stated at 406b - h:

"For the purposes of the applications, all the averments in the statements of claim must be assumed to be true. The statements of claim have been substantially amended and set out the facts of the plaintiffs' case in some detail. In considering the averments contained in them we must bear in mind the well settled principle that the summary procedure for striking out pleadings is to be used only in plain and obvious cases (see Lonrho plc v Tebbit [1991] 4 All ER 973 at 979 per Browne-Wilkinson V-C). Various formulations of this principle have been used: it has been said that it 'ought not to be applied to an action involving serious investigation of ancient law and questions of general importance' (see Dyson v AG [1911] 1 KB 410 at 414 per Cozens-Hardy MR), that it should be confined to cases where the cause of action was 'obviously and almost incontestably bad' (see Dyson (at 419 per Fletcher Moulton LJ)), and that an order should not be made unless the case is 'unarguable' (see Nagle v Feilden [1966] 2 QB 633 at 651 per Salmon LJ). That said, it is to be recognised that if the claim is bound to fail on the law, the courts should not shrink from striking out. As Sir Thomas Bingham MR expressed it in E (a Minor) v Dorsett CC [1995] 2 AC 633 at 693 - 694 in a passage approved by the House of Lords:

'I share the unease many judges have expressed when deciding questions of legal principle without knowing the full facts. But applications of this kind are fought on the ground of a plaintiff's choosing, since he may generally be assumed to plead his best case and there should be no risk of injustice to plaintiffs if orders to strike out are indeed made only in plain and obvious cases. This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition), or in any way sensitive to the facts, an order to strike out should not be made. But if after argument the court can be properly persuaded that no matter what (within the reasonable bounds of the pleading) the actual facts, the claim is bound to fail for want of a cause of action, I can see no reason why the parties should be required to prolong the proceedings before that decision is reached.'"

25. Order 18 rule 19(1) of the Rules of the Supreme Court (Northern Ireland) 1980 is identical to Order 18 rule 19(1) of the Rules of the Supreme Court in England and Wales. As stated in the Supreme Court Practice 1997, Volume 1 at paragraph 18/19/11, a reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings 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 or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out. With reference to Order 18 rule 19(1)(d) the Supreme Court Practice states at paragraph 18/19/15 that the paragraph confers upon the court in express terms powers which the court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the court"; this term notes that the process of the court must be used bona fide and properly and must not be abused. Further as stated at paragraph 18/19/18 of the White Book, apart from all rules and orders, and notwithstanding the addition of paragraph (1)(d), the court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process. This jurisdiction is in no way affected or diminished by Order 18 rule 19(1) of the Rules.

26. In the circumstances of the present case I am satisfied that, even if the learned Resident Magistrate's act was with respect to a matter not within his jurisdiction, the belated allegation of bad faith on the part of the Resident Magistrate is totally groundless and constitutes an abuse of the process of the court and ought to be struck out under the provisions of Order 18 Rule 19(1) as either disclosing no reasonable cause of action and/or being an abuse of the process of the court and/or under the inherent jurisdiction of the court and that judgment be entered for the defendant under Order 18 rule 19(1).

27. Appearances: Ferris QC and Valentine for the plaintiff/respondent

28. McCloskey for the defendant/applicant.

29. Hearing: 14th May and 26th May 1998.

30. Judgment Delivered: 24th September 1998; the issue of costs adjourned for argument at a later date.

1st December 1998: Agreed between the parties that there be no order for costs save that the plaintiff's costs be taxed in accordance with the second schedule.

IN THE HIGH COURT OF JUSTICE IN NORTHER IRELAND

SHEJ2632 QUEEN'S BENCH DIVISION

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BETWEEN

PETER NEILL

Plaintiff;

AND

RICHARD WILSON

Defendant.

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J U D G M E N T

of

SHEIL J

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