Marsh v Chief Constable of Lancashire Constabulary

On a summary judgment application, a claim may be dismissed where the available material shows that it has no real prospect of success. A claimant cannot recover damages where the claim requires reliance on knowing participation in a corrupt scheme involving serious crime.

The police generally owe no private-law duty to investigate or suppress crime. An exceptional assumption of responsibility must be established. Statutory police powers and public duties concerning bail do not, without more, create a personal common-law duty to a member of the public. Misfeasance in public office requires pleaded bad faith, targeted malice, or the requisite subjective recklessness.

The claimant, a motor dealer, alleged that a detective constable corruptly induced him to pay £10,000 to join a supposed police informant scheme and encouraged him to deal in stolen vehicles. After his arrest and detention when stolen vehicles were found at his premises, he brought claims against the Chief Constable for wrongful arrest, false imprisonment, negligence and misfeasance in public office.

A circuit judge struck out the claim. Poole J upheld that decision. The claimant appealed, contending that the judges had impermissibly resolved disputed facts at a summary stage and had misapplied the defence of illegality.

The central question was whether any pleaded head of claim had a real prospect of success.

1. Appeal dismissed unanimously. Lord Justice Potter gave the principal judgment, with which Lord Justice Mummery agreed. Lord Justice Chadwick agreed that every claim had no real prospect of success.
2. The court could determine the application under CPR 24.2 on the material available, including the claimant’s detailed witness statement. It was entitled to conclude that no reasonable tribunal could find that the claimant believed the arrangement lawful. The £10,000 payment was made to participate in a corrupt scheme for dealing in stolen vehicles. The claims for that payment and for expenditure on stolen vehicles therefore depended directly on the claimant’s knowing criminal conduct and were barred by ex turpi causa.
3. The arrest was lawful because the arresting officers had reasonable grounds to suspect the claimant of handling stolen vehicles. His detention for nearly eight hours was not arguably excessive. The police were entitled to investigate his unusual account and were not required to accept it at face value.
4. There was no arguable duty of care concerning investigation of the former business associate’s conduct, preservation of the claimant’s property, bail, or re-arrest for breach of bail. The alleged corrupt informant arrangement could not create an exceptional assumption of responsibility. The statutory powers and public duties under the Police and Criminal Evidence Act 1984 and the Bail Act 1976 did not create a personal common-law duty to a person affected by a bail decision.
5. Misfeasance in public office required bad faith: targeted malice, or knowledge of or subjective recklessness as to illegality and probable injury. Although the judge below erred if he treated the absence of a duty to investigate as itself conclusive, the pleadings alleged no such bad faith or recklessness by officers other than Hoban. Lord Justice Chadwick added that he would not have rejected vicarious liability for Hoban at the summary stage, but illegality independently defeated the claims founded on Hoban’s corrupt scheme.

• Court of Appeal (Civil Division): dismissed the claimant’s second appeal and struck out the entirety of the claim.
• High Court: Poole J upheld the circuit judge’s strike-out order.
• Liverpool County Court: His Honour Judge MacKay struck out the claim on the defendant’s application under CPR 3.4(2)(a) and CPR 24.2(a)(i).