TBS v Metropolitan Police Commissioner

On a strike-out application, the pleaded facts must be assumed to be true. A claim should be struck out only where it is certain to fail under established law. This caution is especially important where the law is developing or where the existence of a duty of care depends on a fair, just and reasonable assessment.

For untargeted misfeasance in public office, the claimant must plead unlawful exercise of public power, together with knowledge that the act was beyond the officer’s powers and knowledge that it would probably injure the claimant, or subjective recklessness as to that risk. A child may in principle claim for damage completed after birth but resulting from earlier conduct. A deceptive course of undercover conduct was arguable, although a separate allegation concerning post-birth supervision was unsustainable on the pleaded expert evidence.

The claimant alleged that an undercover police officer, using a false identity, formed a relationship with the claimant’s mother, fathered the claimant, assumed a false parental role and later abandoned the family under a false explanation. After discovering the officer’s true identity many years later, the claimant alleged psychiatric injury.

The claim against the Metropolitan Police Commissioner was framed in misfeasance in public office and negligence, including alleged vicarious responsibility under the Police Act 1996. The defendant applied under CPR r.3.4(2)(a) to strike out the claim as disclosing no reasonable cause of action. The central questions were whether the claims were legally arguable on the pleaded facts, and whether the claim concerning the supervising officers could stand.

1. Strike-out principles. The court assumed that the pleaded facts could be proved. A claim should be struck out only if it was certain to fail. Where legal development or the fair, just and reasonable limb of a duty of care was in issue, the question was generally better determined after findings at trial.
2. Misfeasance. Untargeted malice requires an unlawful exercise of public power, knowledge that the act is beyond the officer’s powers, and knowledge that it would probably injure the claimant, or subjective recklessness as to the risk of injury. The pleading that the officer knew psychiatric injury was likely, or was recklessly indifferent to that consequence, was not materially deficient.
3. A child could in principle sue for damage completed after birth where the damage resulted from wrongful conduct before conception or birth. The cause of action was not complete until damage was suffered. The pleaded case was not a prohibited wrongful-life claim because the claimant complained of injury caused by deception, rather than alleging that he should not have been born.
4. Negligence. The alleged course of conduct was capable of being considered as a whole. It was not necessarily reducible to a claim about poor parenting. The pleaded foreseeability and duty arguments could not be rejected with the certainty required on a strike-out application.
5. The allegation that supervising officers allowed or facilitated continued deployment after the officer had fathered the claimant was unsupported by the pleaded expert evidence and was unsustainable as it stood. The application was dismissed except in relation to paragraph 11 of the Particulars of Claim. The parties were given seven days to make written submissions on whether that paragraph should be struck out or amended.

First-instance decision. The judgment records no prior appellate decision in this litigation.