Lamothe & Ors v Commissioner of Police of the Metropolis

A court must not determine a central issue in civil proceedings on secret material, without notice to the opposing party, without evidence being called, and before the trial. This is particularly so where the issue is for a defendant to prove and the claim carries a right to jury trial. A procedure for deciding whether sensitive material should be withheld on public interest immunity grounds is distinct from deciding the substantive issue to which that material relates. If a judge has seen material withheld from a party, that judge should not ordinarily conduct the trial.

The claimants brought proceedings in the Central London County Court arising from a police raid. They pleaded false imprisonment, assault, trespass and negligence. The defence relied on sections 17 and 117 of the Police and Criminal Evidence Act 1984, asserting that the officers reasonably believed that a suspected murderer was present.

The claimants applied to strike out parts of the defence for lack of particulars. Without notice, the judge considered confidential material and ordered that the officers had reasonable grounds for their belief, while prohibiting questions which might reveal those grounds. He refused to set the order aside. The appeal concerned the propriety of that procedure.

1. Appeal allowed. The order made on 12 May 1999 was set aside. The claimants’ application concerning paragraphs 8 and 29 of the defence was remitted to the County Court before a different judge.
2. The judge had no proper procedural basis for determining the substantive issue without notice, without evidence being called, and on material which the claimants had never seen. The procedure violated fundamental procedural rights and could not stand.
3. The issue whether the police had reasonable grounds for believing that the suspected person was on the premises was central to the defence. The burden of establishing those grounds lay on the defendant under section 17 of the Police and Criminal Evidence Act 1984. It was also relevant that the claim was subject to a right to trial by jury under section 66(3) of the County Courts Act 1984.
4. The court distinguished a procedure for determining whether sensitive material should be withheld on public interest immunity grounds from deciding a substantive issue on evidence adduced in the absence of the other party. The proper time to determine the substantive issue was after the evidence had been heard at trial, or at a hearing which all parties were entitled to attend.
5. The ordinary procedural answer to the pleading objection was for the defendant to accept that the paragraphs should be struck out, defend their sufficiency, or propose further particulars. Public interest immunity could be addressed in the context of disclosure, while supplying such general particulars as could properly be given.
6. Because the trial judge had seen material which should not have been disclosed and had founded an opinion upon it, the matter was directed to be reheard before a different judge. Costs were awarded to the claimants, subject to legal aid taxation.

• Court of Appeal (Civil Division): appeal from the Central London County Court allowed; order of 12 May 1999 set aside; matter remitted for rehearing before a different judge.
• Central London County Court: application to set aside or vary the order was dismissed, with leave to appeal granted.