Coghlan v Chief Constable of Manchester Greater Police & Ors (Rev 1)

In a malicious prosecution claim, the claimant must prove prosecution by the defendant, favourable termination, absence of reasonable and probable cause, and malice. The last two elements are separate. Where the Crown Prosecution Service independently decides to charge after reviewing the evidence and obtaining counsel’s advice, a police force will not ordinarily be treated as the prosecutor unless its conduct made independent judgment virtually impossible. A claim may be struck out where the pleading does not address an essential element. A closed material procedure cannot be created by inherent jurisdiction in an ordinary damages claim.

The claimant brought two damages claims against police and prosecution authorities. One concerned a discontinued prosecution for assault occasioning actual bodily harm; the other concerned a discontinued prosecution for conspiracy to supply cocaine. Both claims were pursued principally as malicious prosecution claims. The claimant sought appointment of special counsel, a closed material procedure, an adjournment, amendments, and substitution of the National Crime Agency for the Director General.

The defendants applied to strike out under CPR 3.4 and for summary judgment under CPR 24.2. The central issues were whether the pleadings disclosed reasonable grounds, whether the relevant defendants had prosecuted the claimant, and whether any amended case had a real prospect of success.

1. Closed material application. The application for special counsel and a closed material procedure was dismissed and recorded as totally without merit. The claimant had not complied with CPR Part 82, had produced no material capable of satisfying the first condition in section 6 of the Justice and Security Act 2013, and had not shown material damaging to national security. Al Rawi v Security Service established that there was no inherent common-law power to adopt such a procedure in an ordinary civil damages claim.
2. Malicious prosecution. The claimant had to prove prosecution by the particular defendant, favourable termination, absence of reasonable and probable cause, and malice. Absence of reasonable and probable cause could not be inferred from malice. A defendant supplying information was not ordinarily the prosecutor where the CPS made an independent charging decision.
3. ABH claim. The CPS had decided to charge after reviewing the evidence, considering self-defence, and obtaining counsel’s advice. The pleaded case disclosed no reasonable grounds against either defendant. The claim was struck out under CPR 3.4(2)(a). The claim was recorded as totally without merit.
4. Operation Confection claim. The pleadings did not identify a sustainable basis for treating the police or National Crime Agency as prosecutors, nor did they properly plead malice against the CPS. The claim was struck out in its entirety. The proposed substitution of the National Crime Agency did not arise.
5. The court declined to make an extended civil restraint order immediately, but invited further representations if the defendants sought one.