Chief Constable Of Kent v Rixon & Ors

On a combined application under the Civil Procedure Rules, the court should ordinarily consider first whether the statement of case discloses a legally recognisable claim. Only if it does should the court consider whether the claimant has a real prospect of success, normally with evidence.

A detained person's statutory right to consult a solicitor belongs to the detained person, not to the solicitor. Any interference with that right is ordinarily a matter for public law. A solicitor cannot convert the alleged careless exclusion into a negligence claim for financial loss without an independently recognised duty of care.

Misfeasance in public office requires an unlawful act, deliberate dishonesty, and knowledge of, or reckless indifference to, resulting loss. The allegation must be supported by properly pleaded facts.

The Chief Constable appealed from the Canterbury County Court's refusal to strike out claims brought by the partners of Rixons solicitors and an employed solicitor, or to grant summary judgment.

The claims arose after the solicitor was excluded from the secure custody area of Folkestone Police Station and allegedly prevented from seeing a detained client. The claimants alleged negligence and misfeasance in public office, claiming financial and other losses.

The appeal concerned whether the pleadings disclosed legally recognisable causes of action, whether the solicitor had a right of access to the custody area, and whether the pleaded and evidential material could support negligence or misfeasance.

1. Appeal allowed. The court ordered the first and second respondents to pay the costs below and on the appeal.
2. Where a defendant makes a double challenge under CPR 3.4(2)(a) and CPR 24.2(a)(i), the court should normally begin with the strike-out application. It considers the statement of case without evidence and assumes the pleaded facts in the claimant's favour. If those facts disclose a legally recognisable claim, the court may then consider evidence on whether the claim has a real prospect of success.
3. The court rejected the asserted right of a solicitor to enter a police custody area to consult a client. The relevant right under section 58 of the Police and Criminal Evidence Act 1984 belongs to the detained client. Any remedy for interference with that right ordinarily lies in public law. The court left open the possibility that different considerations could arise if a solicitor were forcibly removed after entering in exercise of the client's right.
4. Following X (minors) v Bedfordshire County Council [1995] 2 AC 633, careless exercise of a statutory power does not itself create a private duty of care. A common-law duty must independently arise. The claimants identified no infringed right and could not establish a sustainable negligence claim for financial loss caused by the operational exclusion of one solicitor, particularly since the firm could send another solicitor.
5. The requirements of misfeasance in public office, described in Three Rivers DC v Bank of England (No 3) [2000] 2 WLR 15, include an unlawful act, deliberate and dishonest abuse of power, and knowledge of, or reckless indifference to, loss or harm. Dishonesty must be pleaded with particularity and rigorously assessed on the pleaded case and available evidential material.
6. The claimants' pleadings did not particularise the alleged dishonesty. The additional material did not cure the fundamental difficulty: the claimants had no relevant access right, and could not show that the police knew they lacked power temporarily to exclude the solicitor. The misfeasance claim was therefore bound to fail.
7. The court rejected reliance on the later passage in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 as making pleadings merely historic. Pleadings remain necessary to identify the general nature, issues and extent of the dispute, and must state the facts relied upon rather than merely the evidence.

• Court of Appeal (Civil Division): allowed the appeal from the Canterbury County Court's order of 12 August 1999 refusing strike-out and summary judgment.
• Canterbury County Court: dismissed the Chief Constable's applications under CPR 3.4(1), CPR 3.4(2)(a) and CPR 24.2(a)(i).