Summary
Private law proceedings are not automatically excluded merely because the alleged wrong involves a public authority or raises the validity of a public law decision. The exclusivity principle must remain confined to its proper scope, particularly where the public law issue arises collaterally in a private law claim or requires factual findings unavailable on judicial review.
Applications to strike out or obtain summary judgment should be refused where the claim has a real prospect of success, the law is uncertain or developing, and factual disputes require trial. Questions concerning the availability of a Convention remedy, malice and witness immunity may therefore require determination after the facts have been established.
Factual background
The claimants appealed against Master Davison’s order of 3 August 2018, which struck out and granted summary judgment on parts of their claims against the defendant local authority.
The claims arose from police search warrants obtained during a trading standards investigation allegedly instigated by the defendant. The claimants alleged misfeasance in public office, trespass to goods and breaches of Article 8 and Article 1 of Protocol 1 of the Convention, seeking just satisfaction under section 8 of the Human Rights Act 1998.
The central issues were whether the Convention claims could proceed without first quashing the warrants, and whether the defendant was protected by litigation-related immunity.
Held
- Appeal allowed. The claimants were permitted to proceed with all claims identified in their latest pleaded case.
- The court rejected the conclusion that the Human Rights Act claims were unarguably confined to judicial review. The exclusivity principle in O’Reilly v Mackman [1983] 2 AC 237 did not impose a blanket prohibition on private law proceedings involving public law issues. The approach in Richards v Worcestershire CC [2017] EWCA Civ 1998 supported keeping the principle within its proper scope.
- The validity of the warrants could involve disputed questions about what information was given to the issuing judge and what causal effect any misleading or inadequate information had. Following R (Fitzpatrick) v CC Warwickshire [1999] 1 WLR 564, judicial review was an unsatisfactory mechanism for resolving such factual issues in all but the clearest cases.
- The authorities on immunity, including Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 and Roy v Prior [1971] AC 470, raised substantial questions about the boundary between protected participation in judicial proceedings and conduct undertaken as an investigator or law enforcer. The judgment did not finally determine those substantive issues.
- Under CPR Part 3.4, strike-out was inappropriate unless the claim disclosed no reasonable grounds and was bound to fail. Under CPR 24.2, summary judgment was unavailable where the claimant had a real prospect of success. The developing and fact-sensitive nature of the issues made summary disposal inappropriate, as reflected in Hughes v Colin Richards & Co [2004] EWCA Civ 266.
The court’s approach to earlier authorities
Available to signed-in members.
Appellate history
- High Court (Queen’s Bench Division): allowed the appeal against Master Davison’s order of 3 August 2018, which had struck out and summarily determined parts of the claim.
Key cases cited
9 authorities cited.
- Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435
- Taylor v Director of the Serious Fraud Office [1999] 2 AC 177
- Richards v Worcestershire County Council & Anor [2017] EWCA Civ 1998
- Hughes & Ors v Richards (t/a Colin Richards & Co) [2004] EWCA Civ 266
- R v Chief Constable of the Warwickshire Constabulary, Ex parte Fitzpatrick (Fitzpatrick, Ex parte) [1999] 1 WLR 564
- McCaffer v Lord Advocate (2014) WL 7255774
- Keegan v The United Kingdom [2007] 44 EHRR 33
- O’Reilly v Mackman (Derbyshire v Mackman, Dougan v Mackman, Millbanks v Home Office) [1983] 2 AC 237
- Roy v Prior [1971] AC 470
Sign in to see how the court treated each authority. A free account is enough.
Cases citing this case
Available to signed-in members.