L (A Child) v Reading Borough Council

On a strike-out application, an arguable assumption of responsibility between police officers and those affected by a child-abuse investigation may establish proximity for negligence. Whether it is fair, just and reasonable to impose a duty must ordinarily await trial where the necessary public-interest balance depends on disputed facts.

Witness immunity protects participation in the judicial process. It does not automatically protect police conduct as investigators, particularly alleged fabrication or dishonest misrepresentation designed to defeat justice. Allegations of targeted malice, knowing abuse of power, or a dishonest agreement to injure may found claims for misfeasance in public office and conspiracy. A person foreseeably harmed by a conspiracy directed at another may also recover if the tort is proved.

The appellants were a child and her father. They alleged that a police officer and a social worker conducted abusive and misleading interviews during an investigation into fabricated allegations that the father had sexually abused the child. They further alleged that the officer and social worker misrepresented the interviews, causing damaging family proceedings and consequential loss.

Goldring J struck out the claims against the Chief Constable on the ground of witness immunity. He held that the child had an arguable negligence claim, but that the father lacked proximity. He also held that claims for misfeasance and conspiracy were arguable.

The appeal concerned proximity, the public-policy limb of negligence, the viability of the intentional torts, and whether witness immunity barred the action.

1. Appeal allowed unanimously. Lord Justice Otton gave the judgment, with which Lord Justice Keene and Mr Justice Maurice Kay agreed. The order striking out the action against the Chief Constable was set aside and the claims were permitted to proceed to trial.

2. Applying the duty framework in Caparo, the court held that the child had an arguable case of proximity. The pleaded facts were capable of establishing a special relationship and assumption of responsibility during an investigation concerned with her future protection. The father had no arguable assumption of responsibility while he was merely a criminal suspect. However, after the alleged absence of evidence supporting a prosecution, the pleaded subsequent conduct was capable of creating a special relationship and duty towards him.

3. The third Caparo stage could not fairly be determined on assumed pleaded facts. The public-policy balance could differ between the child and the father, and between interviewing the child and later reporting the interview. The developing effect of [1999] 3 FLR 193 and [1999] 3 WLR 79, together with the potential Convention issues, required particular facts at trial.

4. The misfeasance claim was properly pleaded. It alleged either targeted malice or knowing, dishonest abuse of power likely to injure the claimants. The conspiracy claim was also arguable because alleged fabrication and dishonest misrepresentation could support an inference of a joint intention to injure the father. If that tort were established, the child could recover foreseeable loss despite not being its intended target.

5. Witness immunity did not justify strike-out. Following [2000] 3 WLR 747, immunity protects giving, or preparing to give, evidence as part of the judicial process; it does not shield police acting as investigators from alleged fabrication or conduct capable of defeating the ends of justice. Whether the pleaded conduct fell outside the immunity had to be decided on the facts at trial.

• Court of Appeal (Civil Division): Allowed the claimants' appeal, set aside the strike-out order against the Chief Constable, and directed that the action proceed to trial.

• High Court, Queen's Bench Division: Goldring J struck out the claims against the Chief Constable on the ground of witness immunity. He held that the child's negligence claim and both intentional tort claims were arguable, but that the father lacked proximity in negligence.