Savage v Chief Constable of Hampshire

Public interest immunity protecting a police informer's identity is founded on the public interest, not on a personal privilege which an informer may waive. Where an adult informer seeks disclosure of his own role after relevant criminal proceedings have ended, the ordinary justification based on his safety and the continuing supply of informers may cease. The informer is therefore not automatically barred from pursuing a civil claim.

Immunity may nevertheless remain where evidence shows a distinct and substantial public interest in non-disclosure, such as protection of police methods or ongoing operations. Such issues must be determined on the facts when disclosure is sought. Anticipated discovery difficulties do not themselves make an otherwise arguable claim vexatious or an abuse of process.

The claimant alleged that, after his arrest, a chief inspector acting for the Chief Constable orally agreed to pay him for information and assistance supplied as a police informer. He claimed payment calculated by reference to recovered property, or alternatively a reasonable sum.

The claimant began proceedings in Portsmouth County Court. A Deputy High Court judge refused permission to amend the particulars of claim and struck out the action as frivolous, vexatious and an abuse of process. The principal basis was that the claimant could not disclose or prove in open court that he was a police informer. The respondent also relied on alleged lack of authority, absence of legal intention and alternative tort claims.

The central issue was whether public interest immunity automatically prevented an informer who wished to identify himself from bringing a civil claim to enforce an alleged agreement with the police.

1. Appeal allowed unanimously. Judge LJ gave the leading judgment. Potter LJ agreed with his reasons and added observations. Leggatt LJ agreed that the appeal should be allowed. The order refusing amendment and striking out the action was set aside, and permission to amend was granted.

2. Public interest immunity for informers exists to protect their safety, preserve the supply of information, and in proper cases protect wider police operations. It is not a privilege belonging to an informer. Accordingly, the relevant question was whether a public interest still justified secrecy, rather than whether the informer could waive an immunity personally attaching to him.

3. An adult informer who positively wishes to reveal his own identity is not automatically prevented from doing so in civil proceedings after the relevant criminal proceedings have concluded. The primary safety and assurance rationale may then disappear. The reasoning in Marks v Beyfus, (1890) 25 QB D 494, did not require a result which denied the informer access to the civil court.

4. A distinct public interest may still justify non-disclosure despite the informer's wishes. It must be based on evidence and might include protection of police methods, ongoing investigations, or risks not confined to the informer personally. No such basis had been evidenced on this strike-out application.

5. Possible difficulties over discovery, interrogatories or claims for immunity did not make the claim vexatious or an abuse of process. Those questions had to be addressed on particular facts when properly raised, rather than decided in advance. The remaining objections to the pleading were strong but did not show that the claimant was bound to fail; they required evidence or, if appropriate, a preliminary issue.

• Court of Appeal (Civil Division): Allowed the claimant's appeal, set aside the strike-out order, and granted leave to amend the particulars of claim.
• High Court: A Deputy High Court judge had refused leave to amend and struck out the proposed claim as frivolous, vexatious and an abuse of process. No citation for that decision was stated.