Mills v Ministry Of Agriculture, Fisheries & Food

Summary judgment in a malicious-prosecution claim may be entered under Part 24 where, after respecting the claimant’s entitlement to a jury determination and avoiding a mini-trial, the material is incapable of supporting a finding by a properly directed jury. A prima facie case under domestic law is not displaced merely because officials previously doubted the compatibility of subordinate legislation with Community law. Historic departmental doubts, conflicting legal arguments and procedural irregularities do not, without more, establish absence of honest belief, lack of reasonable and proper cause or malice. The court should not assess credibility or reliability as if conducting the trial, but may act summarily where the claim has no real prospect of success.

The appellant was prosecuted for 42 offences under section 69 of the Animal Health Act 1981, based on allegedly false declarations concerning rest premises and feeding and watering arrangements required by the Export of Animals (Protection) Order 1981. He was convicted by a stipendiary magistrate, but the Crown Court allowed his appeal after the prosecution evidence was excluded and dismissed the summonses.

The appellant later brought civil proceedings alleging malicious prosecution, misfeasance in public office and infringement of Community-law rights. The High Court entered judgment for the respondent under CPR Part 24. The central issue was whether the internal doubts of Ministry officials about the legality of the export regime, together with the conduct of the prosecution, could enable a properly directed jury to find absence of honest belief, lack of reasonable and proper cause or malice.

1. Disposition. The appeal was dismissed. Latham LJ gave the principal judgment and Longmore LJ agreed. Rix LJ concurred in the result but expressed substantial reservations and did not dissent.
2. Summary judgment. The court applied the caution in Swain v Hillman [2001] 1 All ER 191 that an application under CPR Part 24 must not become a mini-trial. The court should avoid evaluating credibility or reliability, since those matters belong to the fact-finder. Nevertheless, judgment may be entered where the pleaded and evidential material is such that no jury, properly directed, could find the necessary facts for the claimant.
3. Malicious prosecution. The prosecutor had prima facie evidence of breaches of domestic law. The only substantial qualification arose from the Community-law challenge. The domestic legality issue was complex and the historical Ministry memoranda showed serious arguments in both directions. There was no direct evidence that the individual prosecutor shared the earlier doubts or acted dishonestly. Those doubts, expressed about seven years before the prosecution and followed by the Commission taking no further action, could not support a proper inference that the prosecution lacked reasonable and proper cause or was brought for an improper motive.
4. Additional reasoning. Longmore LJ observed that ministerial or official views could not determine the legality of subordinate legislation, which remained law until declared void by a competent authority. Latham LJ expressed real doubt about aggregating the state of mind of departmental officials with that of the individual prosecutor, but left that issue undecided because it was unnecessary.
5. Reservations and orders. Rix LJ considered that late disclosure, the public-interest-immunity application, the exclusion of Madame Plisson’s evidence and the unexplained course of the prosecution created matters of concern that might ordinarily warrant fuller investigation. The appeal was nevertheless dismissed. Costs were remitted to a costs judge, the appellant’s publicly funded costs were to be assessed, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division). Appeal against the High Court’s Part 24 judgment dismissed. Costs were remitted to a costs judge and permission to appeal to the House of Lords was refused.
2. High Court, Queen’s Bench Division. On 25 January 2001, Mr Justice Eady entered judgment for the respondent under CPR Part 24.